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THE <i 



NEW YORK. PUBLIC LIBRARY 



PRESENTED BY 



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16 June 192^ 



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NEW YORK. PUBLIC LIBRARY 



PRESENTED BY 



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livu r^ «i states . (SftuxMS: c tTTfu .T Cs>' •rt"''. • /^ - 

^ • • • • ^ 

REPORTS ■ ^<^.iir^c^u^/yr' 

OF THE TRIALS OF '^ ^^ 

COLONEL AAROK BURU, i 

(LATE VICE PRESIDENT OP THE^^nOTEB^STATES,) ' ^ J 

FOR 

TREASON, 

AMD FOR 

A MISDEMEANOR, 

In preparinnf ttie means of a Military Expedition ag^ainst Mexico, a territOTy df 
the King of Spain, with whom the United States were at peace, 

IN THE 

CIRCUIT COURT OF THE UNITED STATES, 

Held at the city of, Richmond^ in the district of Virginia^ in the Summer 

Term of the year 1Q07, 

TO -WHICH 18 ADDED, 

AN APPENDIX, 

CONTAINING 

THE ARGUMENTS AND EVIDENCE 

IN SUPPORT AND DEFENCE OF TAE MOTION AFTERWARDS HADE Br 
THE C0UN9EL FOR THE UNITED STATES, 

TO COMMIT * 

A. Burfy H. Blarmerhassett and L Smithy 

TO BE SENT FOR TRIAL TO THE STATE OF KENTUCKY, 

FOR 

TREASON OR MISDEMEANOR, 

ALLEGED TO BE COMMTTTEU TU&RE. 

« 

TAKEN IN SHORT HAND 

BY DAVID ROBERTSON,, 

COUNSELLOR AT LA.W. 

IN TWO VOLUMES-.. VOL. L 

PHILADELPHIA: 

PUBLISHED BT HOPKINS AND EARLE. 
FRY AND KAMMERER, PRINTERS. 

J 1808. 



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TK3 se:w YO'K I 



A8T0a» LCMOX AND 



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District of Virginia^ 98, 

BE it remembered that on the 9th day of June, in the thirty-second 
year of the independence of the United States of America, Da- 
vid Robertson of the said district liath deposited in this ofRce the 
title of a book, the right whereof he claims as author, in the words 
following, to wit: 

" Reports of the trials of colonel Aaron Burr, (late Vice President 
^ of the United States,) for Treason, and for a Misdemeanor, in 
<< preparing the means of a military expedition against Mexico, 
<< a territory of the king of Spain, with whom the United States 
'< were at peace, in the Circuit Court of the United States, held 
<' at the city of Richmond, in the district of Virginia, in the sum- 
^< merterm of the year 1807. To which is added. An Appendix, 
<< containing the arguments and evidence in support and defence 
'< of the motion afterwards made by the counsel for the United 
<< States, to commit A. Burr, H. Blannerhassett and I. Smith, to 
" be sent for trial to the state of Kentucky, for Treason or Mis-^ 
<< demeanor, alleged to be committed there. In Two Volumes. 
'< Taken in short hand by David Robertson, counsellor at law." 

In conformity to the act of the Congress of the Unked States, inti- 
tuled '< An act for the encouragement of learning, by securing the 
« copies of maps, charts and books, to the authors and proprietors of 
^< such copies, during the times therein mentioned;" and also, to an 
ict intituled " An act supplementary to an act, intitled an Act for the 
« encouragement of leammg, by securing the copies of maps, charts 
<' and books, to the authors ai)d proprietors of such copies, during the 
" times therein mentioned; and extending the benefits thereof to the 
• « arts of designing, engraving, and etching historical and other 
«« prints." 

WILLIAM MARSHALL, 

Clerk of the District qf Virginia, 



• •< 



m , • • ■ 

• • • ■ 

• ••» • 



• • • • • 
• • • 

• • • • 



• • • •' • 



: • •• • • 

• • • •• • 

• • • • • 



x^REFACE. 



X HIS publication contains a full and correct statement of all 
the testimony and documents adduced on the two trials of 
' Col. Burr, for treason and misdemeanor, and on th6 motion 
made by the counsel for the United States, to commit the 
accused, for the purpose of sending them to Kentucky, to be 
tried for similar offences committed there; also the arguments 
of the counsel and the opinions of the judges on all the points 
discussed* The proceedings previous to the trials, before and . 
while the grand jury were m deliberation, are also detailed, but 
the first part of them not so fully as the rest of the report; 
because it was the middle of June, before the reporter was' 
prevailed on to undertake the publication. He has however 
consulted the best sources of information, in order to enable 
him to present to the public a correct statement of those pre- 
liminary proceedings which occurred from the commencement 
of the term till he began the report. He was present in couft, 
during a considerable part of that interval^ and iias therefore 
been aided by his recollection. 

The report of the trials might be perfect, and would be long, 
even if all those proceedings were omitted. But they are in- 
serted, because it was deemed more satisfactory to the public 
to give a connected historical detail of all the proceedings 
against colonel Burr from his first arrest, till the decision of 
the final motion against himself, I. Smith and H. Blanner- 
hassett, than to limit the publication to a statement, however 
full, of the trials only. For j|uch a detail would most probably 
enable the reader to judge most correctly of the views of the 
accused, and of the nature and tendency of the great scheme 
or plot which has thrown the country into such a state of agi- 
tation and alarm, and of the measures adopted to counteract 
and defeat It. For the same purpose, and to elucidate the sub- 
ject, there are prefixed a concise accouitt of his first examination 
before the Chief Justice, the opinion pronounced thereon, and 
the opinion of lkt supreme court of the United States,' in the 
case of BoUmaxrand Swartwout. 

The arguments of the counsel on all points of importance 
are detailed vlftbatim as uttered: and those of a subordinate 
nature are considerably condensed^ as the report would other- 



I 



• 



PREFACE. 

« 

wise have been too voluminous and expensive* As much of 
the authorities referred to are inserted, as will enable any 
reader to comprehend their application. The opinions of the 
court, on most of the points, are published as written and de- 
livered by the Chief Justice, and in the few -other cases as 
uttered. 

In whatever view these trials are to be regarded, they must 
be deemed very interesting. But when we consider the cele- 
brity of the party accused, the stations and characters of some 
of those implicated with him, the magnitude and extent of their 
supposed designs, the danger to the union of the states appre- 
hended therefrom, the learned and profound doctrines which 
were so ably and elaborately discussed by such eminent counsel, 
and the great talents of the court, this report cannot but be 
highly important and valuable. Perhaps no trial for treason 
has taken place in any country, in which more ability, learning, 
ingenuity and eloquence have been displayed* All die impor- 
tant decisions on treason, in England and this country, were 
acutely and thoroughly examined, and considered; and their 
application to the questions before the court discussed with 
great ingenuity and skill: nor was less industry or judgment 
shown in arguing the application and effect of the constitution of 
the United States, and of the common law, if it existed at all as 
a law of the union. On the motion to commit, the effect of th^ 
]plea of " autrefois acquit** or the doctrine of a former acquittal, 
was also ably investigated. 

It is believed that this report will be amusing and interesting 
to all persons capable of reading and understanding; and that 
to the lawyer, politician and man of general information, it will 
be particularly gratifying and useful, as it will comprehend a 
valuable treatise on criminal law, and especially high treason. 
The reporter has used his best exertions to maike the accuracy 
of the publication correspond with the importance of the work* 
How far he has succeeded, he now submits to the judgment 
and candour of the court, the counsel engaged in the cause, 
and the public. 



f 



CONTENTS 



OF THE 



FIRST VOLUME. 



EXAMINATION of Col. Aaron Burr before- the Chief Justice of 

fhe United States, - - 1 

Evidence *>f Major Perkins, who arrested Col. Burr on the Tombigbee 

river, in the Mississippi territory, 2 

Motion of Mr. Hay, the Attorney of the United States, for the. Dis- 
trict of Virginia, to commit the Prisoner, S 

Speech of Mr. Wickham, counsel of Col Burr, in opposition to the 

motion, - - - - - -- - - ,- 4 

peech of Mr. Randolph) counsel of Col. Burr, in opposition to the 
motion, *- - - - -- - -5 

Speech of Col. Burr, in opposition to the motion, - - . - 6 
of Mr. Rodney, the Attorney General of the United States^ 

in support of the motion, - - - - - - 8 

Opinion of the Chief Justice on the motion, ... 11 

of the Supreme Court, in the case of BoUman and Swartwout, 21 
Appearance of Col. Burr, pursuant to his recognisance, at the Circuit 
Court of the United States, for the district of Virginia, on Friday, 

the 22d May, 1807, - * 31 

Challenge of Col. Burr to tbe panel of the Grand Jury, • - U/. 

This su^ect discussed to - - - • - - - 38 

Challenges for favour, - ----- t A. 

The subject discussed to ..-.-- 46 

Grand Jury sworn, - ' - - - - - • «^- 

Motion of Col Burr, to instruct the Grand Jury, discussed - 46—49 

of Mr. Hay to commit Mr. Burr, on a charge of high treason, 50 

discussed to - - - ' - - - 78 

OfMiiion of the Court, delivered by the Chief Justice, on this motion, 79 

Previous proof of an overt act insisted upon by Col Burr's counsel, 82 

discussed to - ----- 96 

Motion of Col. Burr*s counsel to exclude the affidavit of Jacob Dun- 

baugfa, as not appearing to be properly taken, -x - - Ht- 

Opinion-of the Court thereon, - - - - - - 97 

Motion of Mr. Hay, to bind Col. Burr in a further recognisance, 101 

Opinion of the Court thereon, - - - - • 104 

Bail given by Col Bmr, ------ 10© 

The Grand Jury adjourned from the 3d till the 9th of June, - 112 

adjoumedfromthe9th till 11th of June, - - 113 
Motion of Col. Burr to issue a subpoena duces tecurth to be directed to 
the President of the United States, requiring the production of cer- 
tain papers in evidence, ------ 114 

This motion discussed to ----- - 17* 

MotioQ of Col BiUT, to give specific instnictkms to tho Grand Juiy. m 



CONTENTS. 

Page 
Opinion of the Court, on the motion to issue a subpoena duca tecunh to 

be directed to the President of the United States, - 177 
Motion of Mr. Hay to send Doctor BoUmafi to the Grandjury, and that 

he be considered as a pardoned man, ... - 191 
Motion of Mr. Wickham, to instruct tlie Grand Jury to receive no 

papers but throuj^h the medium of the Court, ... 197 

Discussion of this subject to . - . . . 205 
Motion of Mr. Hay, to send to the Grand Jury a cyphered letter and 

Willie to explain it, - . .... 206 
Objection, that he should be asked no question tending to criminate 

himselfj - -* - ... .. . .. 207 

Letter from the President of the United States, in answer to Mr. Hay, 

on the subject of the subpcena ducet tecuntf ... 209 
Discussion of the question, how far a witness may refuse to answer 

questions which he thinks* would criminate himself, . 212—234 

Preliminary discussion of the right to move for an attachment against 

General Wilkinson, - - - - . ' . 236 
Opinion of the Court in the case of Willie, - ... 242 
Motion of Mr. Randolph to issue an attachment ag^ainst General Wil- 
kinson, supported by affidavits, ..... 247 
Objection to those affidavits, because said to be written by the attorney 

of the accused, - ..... 258 
Objection, because the witnesses were present and could be examined 

viva voce, .-..--. 259 

Testimony of James Knox, in support of the motion, - - !268 

of Lieut. Gaines, against the motion, ' - - -■ 271 

of Mr. John Graliam against it, ... 274 

of Captain Murray against it, .... 277 

Speech of Mr. Randolph, in support of the motion, - • i6. 

of Mr. Mac Rae, in opposition to the motion, . - 292 

of Mr. Botts, in support of the motion, ... 300 

True bills for Treason and Misdemeanor found against Aaron Burr 

and -Herman Blannerhasaet, ..... 306 

Motion to bail Col. Burr, discussed .... 306 — 312 

Speech of Mr. Hay, against the motion to attach General Wilkinson, ib* 
Grand Jury call for the cyphered letter, said to be from Gen. Wil- 
kinson to Col. Burr, post marked the 13th May, - • 327 
Discussion of this subject to . - . . . 329 
Mr. Wickham's speech in support of the motion to attach Gen. Wil- 
kinson, --- ...... 331 

Mr. Martin's speech, in support of the same, ... 341 
Indictments found by the Grand Jury against Jonathan Dayton, John 

Smith, Comfort Tyler, Israel Smith and Davis Floyd, - - 350 
Motiop to remove Col. Burr from the public gaol, to another place of 

confinement, on account of the situation of that gaol, - - ib. 

His removal ordered, -...-- 351 

CoL Burr pleads not guilty, ..... 352 
A venir/ of 48 Jurors awarded* out of whom 12 to be from Wood 

county, --..-.-. 354 

Opinion of the Court on the motion against Gen. Wilkinson, - i6. 

Tnal postponed till the 3d day of August, - - - - 357 
Order to remove Col. Burf to the penitentiary, pursuant to the offer of 

the Executive of Virginia, - - - ... 359 
Discussion of the mode of conducting the prosecution and defence 

before the Petit Jury, ..... 364-^65 

Chalienge of the Jurors from Wood county, discussed - 367 — 372 

Discussion of the challenges to the other Jurors, - • 373 — 382 

FrelimiDary observations as to the suspended Jurymen, - 382 — 3B6 



CONTENTS. 

%)eech t)f Mr. Martin as^ainst the competency of the suspended 

Juiymen, - -*- - - - -- 386 

Speech of Mr. Botts an^ainst the same, .... 391 

of Mr. Burr against the same, .... 393 

of Mr. Mac Rae in support of their competency, - 393 

of Mr. Hay in support of their competency, - - 395 

of Mr. Randolph against it, - - - - 412 

Opinionof the Court on this question^ ... - 414 
A " fa/rx," or panel of 48 Jurors, awarded to he summoned by the 

Marshal, - ..... 431 

The Jury sworn, ....... 430 

Opening speech of Mr. Hay to the Petit Jury, - - - ' 433 
Objection of Mr. Burr's counsel to Mr. Hay's mode of examining the 

witnesses, and demand of the previous proof of an overt act, 452—^454 

Mr. Wirt's speech in vindication of this mode of examination, - ib, 
Ar^mentof Mr. BurHs counsel against it, - - - 459-— 460 

Opmion of the chief justice on the order of evidence, - • tb» 

Evidence of general William £aton, .... 473 

of commodore Truxtun, ..... 485 

of Peter Taylor, - - . - 491 

of general John Morgan, - - - 497 

of colonel Morgan, - - • - > ' 500 

of Thomas Morgan, • • - ... 5Q5 

of Jacob Allbrignt, ..... 506 

Further Evidence of Peter Taylor, . ., . 514 

Evidence of William Love, .... - ib. 

of Dudley Woodbridge, ..-..- 518 

of Simeon Poole, - ' - - - ^ • 526 

of Maurice P Belknap, - - - - 538 

of Edmund P. Dana, - - - - - iA. 

Speech of Mr. Wickham in support of the motion to arrest the evidence, 533 



V 



\ 



I 



Alterations^ Additions and Corrections. 

Page 5, Line 39, for * who' rt-ad • which* 

7, 16, for ' that' read * the' 

25, 1, dele • so' 

25, 17, for • moved' read * proved*' - 

33, 20, dele * of fieri facias' 

33, 25, for * that' read * they' 

34, 37, for ' deny him' read * be denied' 
\ 38, 42, for * in' read.* on' 

40, 43, for * it' read • they' 

54, 47, for ' argument' read ' agreement' 

SS^ 6, for * of rea^d « and' 

^ 70, 1, after the comma the sentence ought to read 

thus: ' I trust that unless some hard-mouthed precedents, 
from old black letter books, be found to justify this proce- 
dure, it will be disregarded' 
Page 72, Line 33. for * prejudicate' read * prejudice' 

75, 46, for « with' read * to* 

100, 4, after * things* add * to' 

121, 31, for ' 27th' read ' 22d' 

124, 11, for • 27th' read 22d' 

127, 34, after * that' add • it' 

136, 34, for • Aire' read * Aac* 

173, 20, for « 15th' read * 5th' 

222, 9, for * person* read * prisoner' 

237, 41, for * motion' read * mstance' 

241, 30, aflcr • this' read * because it is' 

257, 23, for • attach' read • atUck' 

274, 30, after • relevancy' add * of his evidence' 

2a*?, 16, for ' that' read « lest' 

292, 13, for • 3d' read * 2d* 

302, 44, for ' cares' read ' ears' 

310, 33, for ' would* read * could' 

315, 40, afler * refers' dele ' to' 

315, 41, after • question* dele * ;' 

328, 15, for ' impel* read • compel' 

337. 6, before * command* read ' a' 

343, 19, after * faciliUting' dele « to' 

349, 45, for * gentlemen' read * gentleman^ 

381, 2, for * returned* read * retained' 

387, 20, for * juryman' read * witness* 

387, 21, for • witness* read * juryman' 

398, 2o, for * severally* read * several* 

401, 47, after * kingdom* add '.that* 

413, 35, for • has* read * is* 

421, 41, for * Pegrom' read * Pcgram* 

438, 12, after • and' dele • we* 

440, 41, for * and* read * but* 

444y 20, for 'influence' read * inference' 

444, 38, for ' assemblage* read ' assembly' 

483, 19, for • those' read * that* 

516, 33, for • him' read ' them' 

534, 36, for « note a* read • note B* 

538, 5, for • Teumley* read * Fernley* 

542, 16, for * note a* read • note B' 

543, 22, after • Fries* insert • f 
552, 13, for • the present* read * this* 
562, 2, dele ' this* 

562, 26, before • 33 Hen. 8* read ' By* 

562, 26, after • 281* dele « By' 

562, 43, after ' be' add • so* 

564, 2, for * be' read * were* 

S^5, 17, for * and^ read * when* 



THE EXAMINATION 



or 



COLONEL AARON BURR. 



RICHMOND, Monday,. March dOth, 1S07. 

Colonel AARON burr, who had been arrested 
OB the Tombigbee river, in the Mississippi Territory, on the 
19th day of February last, and brought to this city under a 
military escort on Thursday evening the 26th instant, remain- 
ed under guard until this day, when he was delivered dver to 
die civil authority, by virtue of a warrant issued by the chief 

J'ustice of die* United States, grounded on the charges of a 
ligh misdemeanor, in setting on foot and preparing, within 
the territories of the United States, a military expedition, to 
be carried on from thence against the dominions of the king of 
Spain, with whom the United States then were and still are at 
peace; and also of treason against the United States. 

Between the hours of twelve and one o'clock, major Scott, 
the marshal of the district of Virginia, attended by two of his 
deputies, wsdted on colonel Burr, at his lodgings at the Eagle 
Tavern, and, after informing him in the most respectful man* 
aer, of the nature and object of his visit, conducted him through 
an awfully silent and attentive assemblage of citizens to a re- 
tired room in the house, where he was brought before chief 
justice Marshall for examination. The counsel and a witness 
for the United States, the counsel for the prisoner, the mar- 
shal and his deputies, and a few friends invited by the counsel 
of colonel Burr, were alone admitted. 

This mode of proceeding occasioned some degree of dissatis- 
faction among the citizens; but the following statement of facts, 
which we are authorised to say is correct, will readily account 
for it. When the attorney for the district applied to the chief 
justice for a warrant, some conversation ensued on the manner 
rf examination. Mr. Marshall observed that it was indifferent 
to him whether it was held at the capitol or at the Eagle 
Tavern. Mr. Hay objected to the latter, that no room was suf- 
ficiently large to receive the crowd that would attend, which 
Vol. L a 



would 1)e a source of considerable inconvenience* Mr. Mar- 
shall observed, that this difficulty could be obviated by luiving 
the examination in* private. To which Mn Hay assented, on 
the condition, that if there were a discussion by counsel, they 
should adjourn to the capitol. 

The evidence introduced on this occasion consisted of a 
copy of the record in the case of Bollman and Swartwout in 
the supreme court of the United States, (containing the af- 
fidavits of general Eaton, general Wilkinson, and others) ; and 
also of the verbal testimony of major Perkins, the gentleman 
by whom colonel Burr was apprehended; the substance of which 
we are authorised to assert, is correctly as follows : On the night 
of the 1 8th or 19th of February last, he was at Washington court- 
house. At about i 1 o'clock, as he was standing at the door of 
the house occupied by the sheriff, he observed two men com- 
ing down the road. The moon afforded him light enough to 
enable him to see objects at some distance. The foremost 
man, who was thirty or forty yards before his companion, and 
who turned out to be colonel Burr, passed near the door with- 
out stopping or speaking. Burr's companion stopped and in- 
quired the way to major Hinson's: the way was pointed out, 
but Perkins informed him that the major was from home, and 
that, in consequence of a late rise in the waters, he would ex- 
perience some difficulty in getting there that night ; the stran« 
ger, however, went on. Perkins, struck with this midnight 
journey, the silence of the person who had first passed, the un- 
willingness of the travellers to stop at a public place, where 
they and their horses might have been accommodated, and 
their determination to continue their route to Hinson^s, after 
information was given that he was from home, communi* 
cated to the sheriff his suspicion, that these men must be 
under the influence of some extraordinary m6tive. Possibly- 
they might be robbers, or perhaps one of them was Burr en* 
deavouring to effect his escape. He had been informed that 
Burr had left Natchez. Impressed by these suspicions, he 
urged the sheriff, who had gone to bed, to rise and go with 
him to Hinson's. After some time the sheriff agreed to ac« 
company him, and they went to Hinson's, where they found 
both the travellers. Burr, who had been in the kitchen to warm, 
himself, soon came into the room where his companion and. 
Perkins were. He spoke very little, and did not seem willing 
to be obseryed. Perkins eyed him attentively, but never got a 
full view of his face. He discerned that Burr once glanced his 
eye at him, apparently with a view to ascertain whether Per- 
kins was observing him ; but withdrew it immediately. The 
latter had heard Mr. Burr's eyes mentioned as being remar- 
kably keen, and this glance from him strengthened his suspi<* 



cionfl* He detenmned immediatdy to take measures for ap- 
prehending him. He accordingly left the place, after men. 
tioning in a careless manner the way he meant to take. Th« 
way he indicated was opposite to the course he thought Burr 
would pursue* After getting beyond the reach of observation, 
he took the road to Fort Stoddajt, and obtained the aid of the 
commandant and four soldiers. The circumstances of the ar- 
rest have been already stated to the public 

Perkins further said, that, while they were on their way to 
Washington, at Chester Town or courthouse, in the back part 
of South*Carolina, Mr. Burr, observing a small collection of 
people, got oif his horse, went into the company, asked for a 
magistrate, and complained of being under an illegal arrest 
and military guard* Perkins, however,- soon reinstated him on 
his horse, and directed the guard to proceed. The people 
manifested no disposition to interfere. 

After the evidence was gone through, Mr. Hay submitted 
to the chief justice a motion in writing for the commitment 
of the prisoner on the two charges above mentioned. A dis- 
cussion was then agreed, on both sides, to be necessary; and, 
in pursuance of the arrangement previously made, Mr. Hay 
moved for an adjournment to the capitol, to which the counsel 
of colonel Burr readily assented. Colonel Burr was then ad- 
mitted to bail in the sum of five thousand dollars for his ap- 
pearance on the following day at ten o'clock, 

Tuesday, 3 1st March, 1 807.— Present, John Marshall, chief 
justice of the United States. Counsel for the prosecution, C«sar 
A* Rodney, attorney general for the .United States ; George 
Hay, attorney of the United States for the district of Virginia* 
Counsel for colonel Burr, Edmund Randolph, esquire, John 
Wickham, esguire. 

At ten oMock, the chief justice was seated on the bench, 
and the court room crowded with citizens. Colonel Burr ar- 
rived at half past ten o'clock, and apologised for the delay, de- 
daring that he had misapprehended the hour at which he was 
bound to appear. 

On the suggestion of the counsel, that it would be impossible 
to accommodate the spectators in the court room, the chief jus- 
tice adjourned to the hall of the house of delegates. 

Mr. Hat, the attorney for the United States, for the dis- 
trict of Virginia, moved, that the prisoner should be committed 
in order to take his trial upon two charges, exhibited against 
him on the part of the United States : 1st, For a high misde- 
meanor, in setting on fopt, within the United States, a military 



«xt»«ditib«i ftgftiiifit the dbtnittions of the king of Sptiuy ft 4b* 
i^ign prince, with whom the United States, at the time of tht 
offence, were, and still are, at peace. 2d, For treason in ass^m'' 
Uing an armed force, with a design to*seize the city of Netf^ 
Orleans, to revolutionize the territory attached to it, and to 
separate the western from the Atlantic states.' 

He stated the first offence to be a violation of the fifth sec* 
tion of an act of congress, passed on the 5th of Jixii^e, i794^ 
Sntitled, ^^ an act in addition to the act for thii puhishment of 
certain crimes against the United States," continued forfimif- 
ed periods by several succeeding laws, and continued without 
limitation by an act passed in 1799. The said section prok 
Vides, ** that if any person shalL within the territory or juris- 
** diction of the United States, begin or set on foot, or provide 
** or prepare the means for any military expedition or entef^ 
^ prize, to be carried on from thence against theterritories ot 
'^ dominions of any foreign prince or state, with whom the! 
^^ United States are at peace, every person^so offending shall| 
^' upon conviction, be adjudged guilty of a high misdemeanor, 
^ and shall suffer fine and imprisonment, at the ^ discretion of 
*^ the court in which the conviction shall be had, so as that 
^^ such fine shall not exceed three thousand dollars, nor the 
^' term of imprisonment be more than three years.'' He sup- 
ported this charge by the letter of the prisoner addressed to 
general Wilkinson, and insisted that it showed probable 
cause to suspect him of having committed this offence ; nay, 
that he had actually committed it, and that this construction of 
the letter was deliberately adopted by the supreme court of 
the United States ; that the intention of the prisoner to com- 
mit these offences was perfectly clear from the evidence. 

But, secondly, he insisted, that there was probable cause to 
suspect, thtit the prisoner had committed an act of treason; 
that he intended to take possession of New-Orleans, make it 
the seat of his dominion, and the capital of his empire ; and 
^at this charge was proved by the adSdavits exhibited in tb6 
ca^es of BoUman and Swartwout, and he referred to the opi- 
nion of the supreme court in those cases, as supporting th^ 
doctrine for which he contended, that there was just ground 
of suspicion agadnst him. *He went minutely' into an examina- 
tion of the evidence, to show that he was correct, and among^ 
other circumstances mentioned his fi;ight from jostice. 

Mr. WicKHAM, in behalf of the prisoner, contended, that 
there was no evidence of treascta committed by colonel Burr ; 
that there was nodiing like an overt act, or probable ground to 
believe hitp. guilty of such an offence; that the letter in cypher 
to general Wilkinson was not delivered by Mn Burr, nor 



proved to be written by him ; that ft compnriscm of the h»cU 
writing was inadteissible evidence ; that if it were written by 
him, the contents of it might be mistaken, and general Wii* 
kinson acknowledged that it could not be fully interpreted ; that 
the definition of treason was clearly marked out by the consti^ 
tution itself, and could not be mistaken. He contested the pro* 
priety and effect of die evidence relied on by the attorney for 
die United States, and insisted, ths^t if any thing could be in* 
ferred from it, an invasion of the territories of the king of 
Spain, a power with which we were in an intermediate BttM 
between war and peace, was by far the most probable $ that if 
his intention were to attack the Spanish setdetnents, it was 
not only innocent, but meritorious ; that th^e were strong cir* 
cumstances at that time to justify the expectation of a war with 
Spain ; and he appealed to the message of the president of the 
United States, at the opening of the session of congress, to 
prove die provocations on the part of Spain, and the probability 
of such an event; that if we remained at peace with that power^ 
sdll colonel Burr might very innocendy contemplate some in* 
dividual enterprize, and the president recommended strong 
settlements beyond the Mississippi; that as to what was deem* 
ed a flight, he only exercised a right in endeavouring to escape 
ftom military despousm. He concluded, that there was not a 
•hadow of evidence to support the charge of treason ; and as 
to the other, the evidence was trivial ; but if deemed sufficient 
to put him on his trial, it was a bailable offence; and as, unfor* 
tmately for colonel Burr, he was brought to the place where 
he had fewer friends or acquaintances, than in almost any other 
part of the United States, it woul^ be cruelty in counsel to 
insist on his giving bail in a considerable sum. 

Mr. Randoli>h enforced the same principles in behalf of the 
accuseds He denied that there was any evidence to support 
eidier of the charges ; that, though long conversant with cri* 
ittinal jurisprudence, he never before heard of a conjecture of 
an overt act of treason attempted to be proved from a supposed 
intention! which was as inconsistent with law and justice as 
with charity. But whatever the intention might have been, the 
law required, that a criminal act must be proved, to support 
a prosecution ; that the government, who had caused him to 
be brought such a great distance from his friends and the scene 
of intelligence, ought not to avail itself thereof to oppress him ; 
that as treason was of all crimes the most heinous, it required 
the strongest evidence to support it; whereas here there was 
no proof except what was vague, weak, and unsatisfactory; that 
ke had not fled from justice, but from military oppression, 
(which he had a right to resist) after he had been acquitted in 



Kentucky, and a grand juty in the Mississippi Teiritory had 
found him not guUty. Notwithstanding the alarm excited^ no- 
thing like an overt act of treason in levying war was proved. 
No military preparations existed, not a single soldier was en* 
listed ; nay, not even a servant extr£lordinary has been shown 
to have attended him; that there was no evidence that Swar- 
twout's communication with Wilkinson was authorised by 
Burr, or that he faithfully delivered the message, if entrusted 
with one ; that therefore the affidavit of Wilkinson proved no- 
thing: that his being in the western country, and engaged in 
collecting persons to settle some valuable lands, were the only 
circumstances which remained to subject him to the slightest 
shade of suspicion; and these were strangely converted into 
acts of ^^ levying war;" that the terrible alarm at New-Orleans 
was imputable to the conduct of general Wilkinson, whose ar- 
bitrary and violent proceedings, and magnifying accounts of 
danger, were calculated to make the people tremble for their 
personal safety* As to his attempt to escape in South Carolina, 
Mr. Randolph concluded that any other man would in the 
same circumstances have endeavoured to escape from military 
persecution and tyranny ; and that the manner in which he was 
treated, was barbarous, inhuman and oppressive, to the last 
degree* That, according to the doctrine contended for by the 
counsel for the United States, a man might be apprehended in 
the district of Maine, and carried as far as the Tombigbee, 
illegally, without redress any where between those places, for 
want of evidence; and when brought to the place appointed 
for his trial, the court would not try him, but wait for further 
evidence, if the commitment appeared to be right on the face 
of it, which would annihilate, altogether, the benefit of the 
writ of habeas corpus. He concluded, that there was no evi- 
dence of an overt act to support the charge of treason, and that 
it ought to be renounced* As to the other point, the fitting out 
an expedition against the dominions of the king of Spain, he 
asked,' where it was prepared? in what state? Virginia, Ohio, 
Kentucky, or the Mississippi Territory f That they had no arms, 
no ammunition; that they had some boats calculated only to 
accommodate families removing to form new settlements^ He 
hoped, that if the judge should think that a recognisance ought 
to be required^ it should be in as small a sum as possible* 

Colonel Burr rose, he said, not to remedy any omission of 
his counsel, who had done great justice to the subject* He 
wished only to state a few facts, and to repel some observa- 
tions of a personal nature* The present inquiry involved a 
simple question of treason or misdemeanor* According to the 
constitution, treason consisted in acts; that an arrest could 



\ 



only be justified by the suspicjons of acts, whereas, in this ease^ 
his honour was invited to issue a warrant upon mere conjee* 
tare ; that alarms existed without cause ; that Mn Wilkinson 
alarmed the president, and the president alarmed the people 
of Ohio. He appealed to historical facts. No sooner did he 
understand that suspicions were entertained in Kentucky of the 
nature and design of his movements, than he hastened to meet 
an investigation. The prosecution not being prepared, he was 
discharged. That he then went to Tennessee. While there he 
beard that the attorney for the district of Kentucky was pre* 
paring another prosecution against him ; that he immediately 
returned to Frankfort, presented himseljf before the court, and 
again was honourably discharged ; that what happened in the 
Mississippi Territory was equally well known ; that there he 
was not only acquitted by the grand jury, but they went far« 
ther, and censured the conduct of that government ; and i# 
there had been really any cause of alarm, it must have been 
felt by the people of that part of the country; that the manner 
of his descent^own the river, was a fact which put at defiance 
all rumours about treason or misdemeanor; that the nature of 
his equipments clearly evinced that his object was purely 
peaceable and agricultural ; that this fact alone ought to over* 
dm>w the testimony against him ; that his designs were ho- 
nourable, and would have been useful to the United States. 
His flight, as it was termed, had been mentioned as evidence 
of guilt* He asked, at what time did he fly? In Kentucky he 
invited inquiry, and that inquiry terminated in a firm convic* 
don of his innocence ; that the alarms were at first great in the 
Mississippi Territory, and orders had been issued to seize and 
destroy the persons and property of himself and party; that 
he endeavoured to undeceive the people, and convince them 
that he had no designs hostile to the United States, but that 
twelve hundred men were in arms for a purpose not yet de- 
veloped ; the people could not be deceived ; and he was ac- 
quitted, and promised the protection of the government ; but 
die promise could not be performed; the arm of military 
power could not be resisted; that he knew there were military 
orders to seize his person and property, and transport him to 
a distance from that place; that he was assured by the officer 
of 9fk armed boat, that it was lying in the river ready to receive 
him on board. Was it his duty to remain there thus situated i 
That he took the advice of his best" friends, pursued the dic- 
tates of his own judgment, and Abandoned a country where 
the laws ceasefl to be the sovereign power ; that the charge 
stated in a hand-bill, that he had forfeited his recognisance^ 
was false ; that he had forfeited no recognis^ance ; if he had 
forfeited any recognisance, he asked, why no proceedings had 



9 

uken place for the breach of it? If he was to be proteeuted 
for such breach, he wished to know why he was brought to thii 
place? Why not carry him to the place where the breach hap« 
pened ? That more than three months had elapsed since thi 
order of government had issued to seize and bring him tp that 
place; yet it was pretended, that sufficient time had not been 
allowed to adduce testimony in support of the prosectiti^i* 
He asked, why the guard who conducted him to that place, 
livoided every magistrate on the way, unless from a conviction 
that they were acting without lawful authority? Why had he 
been debarred the use of pen, ink, and paper, and not even 
permitted to write to his daughter? That in the state of South 
Carolina, where he happened to see three men together, he de- 
manded the interposition of the civil authority; that it was 
firom military despotism, from the tyranny of a military escort, 
that he wished to be delivered, not from an investigation into 
his conduct, or from the* operation of the laws of his country* 
He concluded, that there were three courses that might be pur* 
sued,— an acquittal, or a commitment for treason, or for a mis* 
demeanor; that no proof existed in support of either, but what 
was contained in the affidavits of £aton and Wilkinson, 
abounding in crudities and absurdities* 

Mr« Rodney, the attorney general of the United States, 
then addressed the judge. He observed, that when he consi* 
dered the numerous and attentive audience, the public anzietjr 
ao strongly excited, the character charged, and the crime of 
which he was accused, he was more than usually embarrassed ; 
that he had never felt more for any person than for the pri* 
soner, who wa3 no less Uian the late vice president of the 
United States, esteemed for his transcendent talents, an<| 
whoi9 he once considered as his friend, and treated as such in 
his own house ; that he now stood charged widi the most hei* 
nous crime ; that it was incumbent on those who prosecuted, 
to prove probable cause to believe his^ guilt, and that the chain 
of circumstances showed, without ddvA^t, that he was guilty : 
that, however, he would endeavour to convince him, by his 
manner of conducting the prosecution, that the government 
was not influenced by malicious or vindictive passions, to perr 
secute him. 

That the gentlemen on the other side had argued as if thejr 
were then before a jury upon the principal trial, and demanded 
such legal evidence as would be sufficient to convict him on 
such trial : that the law however, required no stich plenary tes^ 
timony in this incipient stage of the proceedings ; that to sboir 
probable cause to authorise a commitment, ex parte testimony 
was admissible; and unless it manifestly appeared that* he was 



f 



iiinoceiit, he ought to be committed; whereas before a jury, 
3ach testimoDy would be excluded, and his innocence would 
be presumed till his guilt appeared ; that on the trial the law re- 
quired two witnesses to an ov#rt act of treason ; and that his 
confession would be unavailing unless made in open couit; that 
on the present inquiry, two witnesses were not requisite to 
prove an overt act, and that ex parte evidence of his confession 
must be admitted; that it was true, that the constitution requir* 
ed two witnesses of an overt act to convict the prisoner; but 
that the sixth article of the amendments to the constitution, 
rendered probsdde cause only necessary to- justify the issuing 
a warrant to take a man into custody, and of course to commit 
him for trial. That there were two charges against him : one 
for a crime against the constitution ; the other for a violation 
of the act of congress passed in 1 794, to prevent the safety and 
peace of the United States from being put in jeopardy, by the 
daring enterprises of unauthorised in^viduals; on both of 
which he would make a few remarks* In the first place he 
contended, that the mystery in which this business was enve- 
loped, afforded just grounds of suspicion. If the setdement o( 
lands merely was intended, why were dark and corruptive mes« 
sages sent to military commanders? why was a letter in cypher. 
sent to the commander in chiefs when be was supposed to be 
at St. Loais? why, when it was found he was not there, was 
another sent to Natchitoches, and frpm thence to.New-Orlesuis? 
That it was an important fact, that colonel Burr in the preceding 
year had been throughout that whole country; that it was the 
practice every 'day to take the confession of accomplioes aa 
evidence against their principals, though made to escape pu- 
nishment themselves ; that here the case was much stronger, 
for the confessions of B<^man and Swartwout to general 
Wilkinson were perfectly voluntary— -with the design of engaging 
him in the criminal projects of colonel Burr: Their disclo- 
sure ought to have the more weight, because they knew the 
contents of the letters which they delivered, which stated them 
to be in his confidence; and they declared themselves his par-. 
tizans; that the affidavit of general Wilkinson, by which the^e 
&cts are proved, was certainly good as a piece of ex pairte teati*' 
Bony in this stage of the business, though inadmissible on. the 
trial; that the declaration of Swartwout^ as stated in that affida- 
vit, proves the intention of the prisoner to have been to seize on 
New-Orleims, and plunder it, as preparatory to his expedition 
against Mexico; that the supreme court, in the case of JBotlman 
and S vartwouti had adjudged, that if an end cannot be accom^ 
(dished without treasonable means, the end itself was treasona- 
ble; and of course the project of the prisoner must have been 
tb perpetrate treason. Mr. Kodney further contended, that the 
Vol. I. B 



10 

trea9onabIe intention thus proved by Wilkiiison wm Mronglf 
fortified by the deposition of general Eaton, vhidi was un** 
questionable evidence in this stage of the prosecution; that 
ihere could be no doubt of the truth of the statements of this 
gallant soldier; diis man of true honour and most respective 
tharaeter, who had rendered such memorable services to his 
country by traversing the deserts of Lybia, and by the conquest 
of Deme; that his communications to him were begun in the 
same cautious manner with those to general Wilkinson ; that 
in both instances, he pretended at first to be in the confidence 
of the government, but afterwards proceeded by degrees to de«* 
velop his treasonable plans ; that the territory of Orleans, or 
some other territory belonging to the United States, was to be 
tevolutionized; that there was to be some seizure at'New«Or- 
leans; thatno doubtremaitiedof the treasonable indention; that 
the only doubt was, whether there was sufficient proof of force 
having been actually embodied, and that all the circumstances 
rendered that fact very probable. Mr. Rodney here expatiated 
On the evidence : the letter of colonel Btirr written in July; his 
intention to wait till he heard ft-om the military commander at 
New-Orleans ; Swartwout's statement ^ Eaton's deposition; the 
activity of colonel Burr in Ohio, Kentucky, Tennetie6,and the 
Mississippi Territory, and his cautious nlysterious conduct; and 
that in this incipient stage of the proceedings, stro^gier testimo- 
ny could not be reasonably' expected ; that the goveifittient, 
however vigilant it had been, had not had sufl|cien« time to ob^ 
tain it; and that he ought to be put on his trial i that if he 
thotdd be acquitted by a jnry bf his country, It w^uld give no 
man more heartfelt pleasui'e than himself* 

When Mr. Rodney concluded, Mr. Hay observed, that if 
fli^ judj^ should be of opinion, that the prisoner ought to b« 
^\xt on his trial, and that he might be admitted to bail, he wish** 
ed to make some observations on the amount of the sum in 
tHbich tiie recognisance should be taken* He cited the 1st 
tol. of the laws of the United States, p« 144, and 2d voL p. %7Sy 
to show, that it was discretionary with the judge to admit to 
ball, whether he shotlld be of opinion that he ought to be triecl 
for treason or misdemeanor.* ' The chief justice answered, thsur 
he wqiild' certainly give hhn ah opportui^ity to make the ob« 
iefvatiohs he desired ; and that. he intended hinhterelf, to deliver 
his opinion in writing, to prevent any misrepresentations of es. 
pressions which might fall iVom him. Ab it could not be pre* 
{mred tiH the next day, eolonel Burr's recognisance was renew- 
ed for his appearance at the capitol on the following day at 
ten o'clock. 



n 



WsmftsDAY, l9C April, 1607««-*-Th« chitf justice delivered 
tke ibUowiog opinion in the presence of a numerous audience : 

I am required on the part of the attorney for the United 
States to commit the accused on two charges: 

Ist. For setting on foot and providing the means for an ex* 
pedittOQ against the territories of a nation at peace with the 
United States. 

2d. For committing high treason against the United States. 

On an application of this kind I certainly should not require 
diat proof which would be necessary to ccmvict the person to 
be commjltedf on a trial in chief; nor should I even require that 
which should absolutely convince my own mind of the guilt of 
the accused: but I ought to require, and I should require, that 
probable cause be shown; and I understand probable cause to 
be a case made out by proof furnishing good reason to believe 
that the crime alleged has been committed by the person 
charged with having committed it. 

I think this opinion entirely reconcileable with that quoted 
from judge Blackstone. When that learned and accurate com* 
mentator says, that *^ if upon an inquiry it manifesdy appears 
diat no such crime has been committed, or that the suspicion en- 
tertained of the prisoner was wholly groundless, in such cases 
only it is lawful totally to discharge him, otherwise he must be 
committed to prison or give bail, I do not understand him as 
meaning to say that the hand of malignity may grasp any indi« 
vidual against whom its hate ma^ be directed, or whom it may 
capriciovaly seize^ charge him with some secret crime, and put 
him on the proof of his innocence.* But I understand that the 
foundation of the proceeding must be a probable cause to be- 
lieve there is guUt; which probable cause is only to be done 
away in the manner stated by Blackstone. The total failure of 
proof on the part of the accuser would be considered by that 
writer as being in itself a legal manifestation of the innocence 
of the accused. 

In inquiring therefore into the charges exhibited against 
Aaron Burr, I hold myself bound to consider how far those 
charges are supported by probable cause. 

The first charge stands upon the testimony of general £aton 
and general Wilkinson. 

The witness first named proves that among other projects 

* The cbicf justice ezpliciOy ttated to the reporters, that, in making the 
abore observatioDS, he had no alhision to the conduct of t^e government in the 
case before him, but only meant an elucidation of the general doctrine laid 
dovm by Blackstone. He was induced, he said, to make these remarks, be- 
cause it bad been sug|^stcd to him by a friend, after he had delivered liia 
opinion, that his meaning in the abbvc expressions might possibly be miaap-' 
wchefidcd. 



/ 



12 

which were more criminal, colonel Burr meditated an expedi^ 
tron against the Mexican dominions of Spain. This deposition 
may be considered as- in^xKluctory to the affidavit of genend 
Wilkinson, and as explanatory of the objects of any imlitary 
preparations which may have been made. 

I proceed then to that affidavit. 

To make the testimony ofgeneral Wilkinson bear on colonel 
Burr, it is necessary to consider as genuine the letter stated by 
the former to be, as nearly as he can make it, an interpretation 
of one received in cypher from the latter. Exclude this letter, 
and nothing remains in the testimony, which can in the most 
remote degree aiFect colonel Burr. That there are to the ad- 
missibility of this part of the affidavit great and obvious objec- 
tions, need not be stated to those who know with how much 
caution proceedings in criminal cases ought to be instituted^ 
and who know that the highest tribunal of the United States 
has been divided on them. When this question came before 
the supreme court, I felt the full force of these objections, al- 
though I did not yield to them. On weighing in my own 
mind the reason for and against acting, in this stage of the bu- 
siness, on that part of the affidavit, those in favour of doing so 
appeared to me to preponderate, and, as this opinion was oot 
overruled, I hold myself still at liberty to conform to it. 

That the original letter, or a true copy of it accompanied by 
the cypher, wduld have been much more satisfactory, is not to 
be denied: but I thought, and I still think, that, upon a mere 
question whether the accused shall be brought to trial or not, 
upon an inquiry not into guilt but into the probable cause, the 
omission of a circumstanoe which is indeed important, but 
which does not disprove the positive allegations of an affidavit, 
ought not to induce its rejection or its absolute disbelief, when 
the maker of Ae affidavit is at too great a distance to repair the 
fault. I could not in this stage of the prosecution absolutely 
discredit the affidavit, because the material facts alleged may- 
very well be within the knowledge of the witness, although he 
has failed to state explicit^ all the means by which this know- 
ledge is obtained. 

Thus, general Wilkinson states that this letter was received 
from colonel Burr, but does not say that it was in his hand 
writing, nor does he state the evidence which supports this af- 
firmation. But, in addition to the eircumstance that the posi- 
tive assertion of the fact ought not perhaps, in this stage of the 
inquiry, to be disregarded, the nature of the case furnishes that 
evidence. 

The letter was in cypher. General Wilkinson k is true, does 
notsay that acypher had been previbusly settled between colonel 
Burr and himself, in which they might correspond on subjects 



13 

which, Aoogfa innocent^ neither of them might with to subject 
to the casualties of a transportation from the Atlantic to the 
Mississippi; but when we perceive that colonel Burr has written 
in cypher, and that general Wilkinson is able to decypher the 
letter, we must either presume, that the bearer of the letter was 
also the bearer of its key, or that the key Iras previously in 
possession of the person to whom die letter was addressed. In 
staling particularly the circumstances attending the delivery of 
this letter, general Wilkinson does not say that it was accom- 
panied by the key, or that he felt any surprise at its being in 
cypher. For this reason, as well as because there is not much 
more security in sending a letter in cypher accompanied by its 
key, than there is in sending a letter not in cypher; I think it 
more reasonable to suppose that the key was previously in poS^ 
session of Wilkinson. If this was the fact, the letter being 
written in a cypher previously setded between himself and 
colonel Burr, is, in this stage of the inquiry at least, a circum« 
stance which sufficiendy supports the assertion, that the letter 
was written by colonel Burr. 

The enterprize described in this letter is obviously a milita- 

3 enterprise, and must have been intended either against the 
nited States, or against the territories of some other power on 
the continent, with all of whom the United States were at 



The expressions of this letter must be admitted to furnish at 
least probable cause for believing, that the means for the expe* 
dition were provided. In every part of it, we find declarations 
indicating that he was providing the means for the expedition; 
and as these means might be provided in secret, I do not think 
that further testimony ought to be required to satisfy me, that 
there is probable cause for committing the prisoner on this 
charge. 

Since it will be entirely in the power of the attorney general 
to prefer an indictment against the prisoner, for any other of- 
fence which he shall think himself possessed of testimony to 
support, it is in fact, immaterial whether the second charge be 
expressed in the warrant of commitment or not; but as I hold 
it to be my duty to insert every charge alleged on the part of 
the United States, in support of which probable cause is shown, 
and to insert none in support of which probable cause is not 
shown, I am bound to proceed in the inquiry. 

The second charge exhibited againt the prisoner, is high 
treason against the United States in levying war against 
them. 

As this is the most atrocious offence which can be committed 
against the political body, so is it the charge which is most ca- 
pable of being employed as the instrument of those malignant 



14 

tnd vtndiGtsire piivaians which may rag% in the bosoms of con* 
tending parties straggling for power« It is that, of which the 
people of America hare been most jealous, and therefcme, 
while other crimes are unnoticed, they have refused to trust 
the national legislature with the definition of this, but have 
themselves declared in their constitution that ^4t shall consist 
only in levying war against the United States, or in adhering 
to their enemies giving them aid and comfort." This high 
crime consists of overt acts wUch must be proved by two wit* 
nesses or by the confession of the party in open courts 

Under the control of this constitutional regulation, I am to 
inquire whether the testimony laid before me furnishes proba* 
ble cause in support of this charge. The charge is, that the fact 
Itself has been committed, and the testimony to support it must 
furnish probable cause for believing that it has been actually 
committed, or it is insufficient for the purpose for which it ia 
adduced. 

Upon this point too, the testimony of general Eat6n is first 
to be considered. That part of his deposition which bears up- 
on this charge is the plan disclosed by the prisoner for seizing^ 
upon New-Orleans, and revolutionizing the western states. 

That this plan, if Consummated by overt acts, would amount 
to treason, no man will controvert. But it is equally clear, that 
an intention to commit treason is an offence entirely distinct 
from the actual commission of that crime. War can only be 
levied by the employment of actual force. Troops must be 
embodied, men must be assembled in order to levy war. If 
colonel Burr had been apprehended on making these commu- 
nications to general Eaton, could it have been alleged that he 
had gone further than to meditate the crime ? Could it have 
been said that he had actually collected forces and had actually- 
levied war? Most certainly it could not. The crime really com- 
pleted was a conspiracy to commit treason, not lin actual com* 
mission of treason. 

If these communications were not treason at the instant they 
were made, no lapse of time can make them so. They are not 
injthemselves acts. They may serve to explain the' intention 
with which acts were committed, but they cannot supply those 
acts if they be not proved. 

The next testimony is the deposition of general Wilkinson, 
which consists of the letter already noticed, and of the comma- 
nications made by the bearer of that letter. 

This letter has already been considered by the supreme 
court of the United States, and has been declared to import, 
taken by itself or in connexion with Eaton's deposition, rather 
au expedition against the territories of the United States. By 



tliMt dedflicm I am boundi wjhfillier 1 fcoit^iiKrei.)ii U<Hr 4K>t« 0UI 
I did concur in iu On this point the court Was unsuwnpusS 

It is, howeyer, urged that the detkif ations of S wartvrput may 
be connected with the letter and Used against coioael Burf. 
Although the confession of one man cannot criminate} an*» 
other, yet I am indined to think that, ovkaimtre inquiry in« 
to probable cause, the declaration of Swattwout made on this 
particular occasion, maybe used against colonel tBurr» My 
reason for thinking so is, that tcdonel Burr's letter authorUea 
Mr. Swartwout to speak in his name. He empowers Mn 
S wa r twont to make to general Wilkinson vetbal cQiniiiunica* 
tions explanatory of the plans and designs Of Burr, w4|ich Burc 
adopts as his own explanations. However inadmissible tbere^ 
fore, this testimony may be on a trial in cUef^ I am inclined tCr 
admit it on this inquiry. 

If it be admitted, what is its amount? Upon thitf point too, it 
i^peaiB that the supreme court was divided^ I thefefOTe hold 
asysclf at liberty to pursue my own opiniont which was, that th^ 
words **this territory must be revolutionized^" did not so 
ckarly iq)ply to a foreign territoiy as to reject that sense which 
would make them applicable to a territory of die United States^ 
it least so far as to admit of further inquiry into their meaning* 
And if a territory of the United Sutes was to be revolutionit<i 
ed, thoagh only as a mean for an expedition again$t a foreign 
power, the act would he treason* 

This reasoning leads to the conelusibn diat there is probable 
cause far the allegation that treasonable designs were enter* 
tained by the prisoner so late as July last, when this letter was 
written* 

It remains to inquire whether there is also probable cause to 
hdieve, that these designs have been ripened into the crime it* 
self by actually levying war against the United States* 

It has been already observed, that to constitute this Crime, 
troops must be embodied, men must be actually assembled; 
and these are facts which cannot remain invisible. Treason 
may be machinated in secret, but it can be perpetrated only in 
open day and in the eye of the world. Testimony of a fact 
which in its own nature is so notorious ought to bc unequivo- 
caL The testimony now offered has been laid before the su- 
preme court of the United States, and has been determined in 
the cases of BoUman and Swartwout, not to furnish probable 
cause for the opinion that war had been actually levied. What- 
ever might have been the inclination of my own mind in that 
i, I riiould fe^l much difficulty in departing from the deci« 
dien made, unless this case could be clearly distinguished 
finm it. I will, however, briefly review the arguments which 
have been urged, and the facts now before me, in order to show 



16 

more dearly the panicolar opeimtion they have on my own 
judgment. 

The fact to be established is, that in pursuance of these de- 
signs previously entertained, men have been actually assembled 
for the purpose of making war against the United States; and cm 
^e showing of probable cause that this fact h^ been committed, 
depends the issue of the present inquiry. 

The first piece of testimony relied on to render this fact pro- 
bable, is the declaration of Mr. Swartwout, that ^^colonel Burr 
was lewfing an armed body of 7,000 men • from the state of 
New- York and the western states and territories, with a view 
to carry an expedition against the Mexican provinces.'^ The 
tenii ^^leinfing^^ has been said, according to the explanation of 
the lexicons, to mean the embodying of troops, and therefore to 
prove what is required. Although I do not suppose that Mr. 
Swartwout had consulted a dictionary, I have looked into 
Johnson for tiie term, and find its first signification to be ^to 
raise,'' its second ^^to bring together." In common parlance, it 
may signify the one or the other. But its sense is certainly decid- 
ed by the fact. If when Mr. Swartwout left colonel Burr, which 
must be supposed to have been in July, he was actually embo* 
dying men from New-York to the western states, whatcould veil 
his troops from hunian sight? An invisible army is not the in- 
strument of war, and had these troops been visible, some testi* 
mony relative to them could have been adduced. I take tho 
real sense then in which this term was used to be, that colonel 
Burr was raising, or in other Vords engaging or enlisting men 
through the country described, for the enterprize he meditated* 
The utmost point to which this testimony can be extended is, 
that it denotes a future embodying of men, which is more parti- 
cularly mentioned in the letter itself, and that it affords proba- 
ble cause to believe that the troops did actually embody at the 
period designated for their assembling, which is sufficient to 
induce the justice to whom the application is made to commit 
for trial. 

I shall readily avow my opinion, that the strength of the 
presumption arising from this testimony ought to depend 
gready on the time at which the application is made. If soon 
after the period at which the troops were to assemble, when 
full time had not elapsed to ascertain the fact, these circum* 
stances had been urged as the ground for a commitment on 
the charge of treason, I should have thought them intided to 
great consideration. I will not deny, that in the cases of Boll- 
man and Swartwout, I was not perfectiy satisfied that they did 
not warrant an inquiry into the fact. But I think every person 
must admit that the weight of these circumstances daily Ai^ 
miqjshes. Suspicion may deserve great attention, when the 



17 

means of ascertaining its teal grounds are not yet possessed ; 
but when those means are or may have been acquired, if facts 
to support suspicion be not shown, every person, L think, 
must admit, that the ministers of justice at least ought not of* 
ficially to entertain iu This, I tfamk, must be conceded by all ; 
but whether it be conceded by others- or not, it is the dictate 
of my own judgment, and in the performance of ray duty I 
can know no other guide. 

The fact to be proved in this case is an act of public noto- 
riety. It must exist in the view of the world, or it cannot 
exist at all. The assembling of forces to levy war is a visible 
transaction, and numbers must witness it. It is therefore ca- 
pable of proof; and when time to collect this proof has been 
given, it ought to be adduced, or suspicion becomes ground 
too weak to stand upon. 

Several months have, elapsed, since this fact did occur, if it 
ever occurred. More, than five weeks have elapsed, since the 
opinion of the aujpreme court has declared the necessity of 
proving the fact, ii it exists. Why is it not proved? 

To we executive government is intrusted the important power 
of prosecuting those, whose crimes may disturb the public re- 
pose,ior endanger its safety. It would be easy, in muchless time 
than has intervened sitice colonel Burr has been alleged to have 
assembled his troops, to procure affidavits establishing the fact* 
If, in November or December last, a body of troops had been 
assembled on the Ohio, it is impossible to suppose that affida- 
vits jeatablishing the fact could not have been obtained by the 
Jan of March. I ought not to believe that there has been any 
remissness on the part of those who prosecute, on this impor- 
tant and interesting subject ; and consequently, when at this 
late period no evidence, that troops have been actually embo- 
died, is g^ven, Fmust say, that the suspicion, which in the first 
instance might have been created, ought not to be continued, 
uidess this want of proof can be in some mani^ accounted 
for. V^ 

It is stated by the attorney for the United States, that, as 
affidavits can only be voluntary^ the difficulty of obtaining them 
accounts for the absence of proof. 

I cannot admit this position. On the evidence furnished by 
this very transaction of the attachment felt by our western for 
their eastern brethren, we justly felicitate ourselves. How in- 
consistent with this fact is the idea, that no man could be 
found who would voluntarily depose, that a body of troops had 
actually assembled, whose object must be understood to be 
hostile to the union, and whose object was detested and de- 
feated by the very people who could give the requisite infor- 
mation ! 
Vol. I. C 



18 

I cannot doubt that means to obtain information have been 
taken on the part of the prosecution ; if it existed, I cannot 
doubt the practicability of obtaining it ; and its nonproduction, 
at this late hour, does net, in my opinion, leave me at liberty 
to give to those suspicions which grow out of other circum- 
stances, that weight to which at an earlier day they might have 
been entitled. 

I shall not therefore insert in the commitment the charge 
of high treason. I repeat, that this is the less important, be- 
cause it detracts nothing from the right of the attorney to pre- 
fer an indictment for high treason, shouid he be furnished with 
the necessary testimony. 

The chief justice having delivered his opinion, observed, 
that, as colonel Burr would be put on his trial for carrying on 
a military expedition against a nation with whom the United 
States were at peace, his case was of course bailable. 

Mr. Wickham wished to say something as to the sum in 
which colonel Burr should be recognised to appear. 

Chief Justice.— I have thought a good deal on the subject, 
but have formed no very deliberate opinion. Bail ought cer- 
tainly to be required in a sum sufficiently serious to insure the 
appearance of the party, but not so large as to amount to op- 
pression. It has occurred to me, that, under all the circum- 
stances of the case, ten thousand dollars would be about right, 
and would avoid the two extremes. 

Mr- Hay. — I have no doubt of Mr. Burros ability to pro- 
cure bail for any sum which might be exacted, even without 
asking for it. I do not think ten thousand dollars adequate ; 
nor would I ask a larger sum if I did not think it could be 
obtained wiliiout subjecting colonel Burr to any kind of incon- 
venience. From the facility with which bail was offered a few 
days ago, I have discovered a disposition in certain gendemen 
of this place to relieve colonel Burr from the humiliation of an 
imprisonment. 

Mr. Wickham.*— I should suppose, sir, that five or six thou- 
sand dollars would be sufficient. It should be recollected, that 
colonel Burr is to give bail to answer the charge of a misde- 
meanor only. He is here, among strangers. Perhaps, in no 
part of the United States, has colonel Burr fewer acquaint- 
ances than in Richmond. And however easy it might be for 
him to procure bail among his friends or connexions, I am 
very apprehensive he will not be able to obtain it here for so 



19 

large a sum as ten thousand dollars. With respect to his abi- 
lity to procure bail for any amount, as stated by Mr. Hay, I 
do expect that that observation, like some others of that gen- 
deman, is not well warranted. Upon this point I am unable 
to express any decided opinion, as it is a subject with which I 
am personally unacquainted. But as to the spirit^ which, it is 
insinuated by Mr. Hay, has been shown by certain 'gentlemen 
to relieve colonel Burr, I am enabled explicitly to state the 
opinions of others, of a very different nature. It is true that 
two gentlemen stepped forward a few days ago, and relieved 
colonel Burr from the horrors of a dungeon. Their sole ob- 
ject was to assist a gendeman in distress, who had been drag- 
ged here by a military force more than a thousand miles. Gren- 
demen might be willing to be bound for two days, who would 
reluctantly engage for a longer time. Besides, I have heard 
several gentleman of great respectability, who did not doubt 
but colonel Burr would keep his recognisance, express an un- 
wiUingness to appear as bail for him, lest it might be supposed 
they were enemies to their country. I hope this sentiment is 
incorrect; but it certainly will have, its influence. I doubt very 
much whether he can procure bail, considering his remote 
sitnation from his friends, and the apprehensions just men« 
tioned. 

Mr. Hat.— <I did state, sir, my belief to be, that colonel 
Burr could find bail for any sum which might be demanded. 
Mr. Wickham has been pleased to say, that this observation, 
like some others of mine, is not well warranted. I therefore 
consider it my duty to state candidly and correctly the reasons 
which have induced me to form that opinion. In the first 
place; two gentlemen, having no acquaintance with colonel 
Burr, on the first day of the examination voluntarily stepped 
forward^ and offered themselves as his bail. This proves the 
prevailing sentiment among certain gentlemen. This senti- 
ment, we may fairly presume, is not confined to those two 
gentlemen alone. Secondly; I have been well informed, that 
colonel Barr could give bail in one hundred thousand dollars. 
Mr. Wickham has not mentioned names, nor shall I state the 
source of my information. I do not pretend to say, that this 
large sum should be required. But when it is considered, that, 
at the next court, evidence of assembling troops may be ad- 
duced, which will constitute the crime of treason, and prevent 
the appearance of colonel Burf^ I do think that a sum suffi« 
ciendy large should be fixed on to insure that object. 

Colonel Burr.— I had no expectation, sir, that anything 
would be taken into consideration but the subject immediately 



20 

before you. Possibilities have, however, been gone into, which 
are sorely out of the question. With respect to my ability to 
find bail, I very mudi doubt it. Qnly one person ever told 
me that he was willing to be my baH;^nd I much question 
whether it will be in my powerto procure bail at this time for 
any sum. It is true, that, by the courtesy of two gentlemen, I 
was relieved for twenty»four hours. A man may be willing to 
be bail for a day, or for two days, who would not engage 
for a longer time. I am sensible,- tOQ, that many will be re* 
Strained by the circumstances meotionedby my counsel. Gen* 
tlemen are unwilling to expose themselves to animadversion* 

As to my pecuniary circumstances, it is pretty, well known 
that government has ordered niy property to be seized, and 
that the order has been executed. My property to the amount 
of upwards of forty thousand dollars has been lost, and my 
credit has consequently been much impaired* 

Chief Justice. — If colonel Burrliadbeen in the circle of 
kis friends, it might have made a difference as to the sum in 
which bail would be required. It b supposed that, under his 
present circumstances, bail to the amount of ten thousand dob 
lars may be given. On a mere question as to bail| in this stage 
of the business, and from the proofs already adduced, the 
charge of treason ought not to be considered. 

If bail for ten thousatid dollars cannot be had, I will hear 
an application to reduce the sum. 

• 

Mr. Hat. — As long as that impression remains, no person 
will offer till the sum shall be reduced to its.minimum. 

.1 ' ■ 

Chief Justice.— I shall certainty not very readily yi^d to 
an application to reduce the sum. And should it, he made,^you 
shall have notice of it. 

The judge adjourned till three o'clock, in order to pve the 
prisoner an opportunity to procure bail. At the hour appoint* 
ed, he again attended at the capitol, when colonel Burr, with 
iive securities, entered into a recognisance in the supoi of ten 
thousand dollars for his appearance at the next circuit court of 
the United States for the Virginia district, which will com* 
mence on the 22d day of May neact. 



r 



\ 



21 
OPINION 

or SUPREME COUBT Or TBE UNITES STATET, 

Beliv€rrd byi CAi^ Jtistice Marsball^ on the 2Ut of fcbruary^ 
. 1907 i r^errcd to in the trials of caUnel Bur tm " 

The United States 1 ij.. ^ * . • 

• ^g/ L Habeas,corpu9^ op a commitment 

BoUman and Swartwout. J ^ 

THjS prUonera having been broujitit. before this court on^ 4 
writ of habeas corptiSy and the testinipny on which they were 
committed having beei^ fully examined and attentively consir 
^Hbd, the court ifi now to declare the law upon (h^ir case. 

Thia being a mere inquiry, which, without deciding upom 
guilty precedes the. institution of a prc^ecutk^n^y^e quesdop to 
be determined is, whether the accused shall be discharged or 
hcM to trial ; and if the latter, in what place they are to be 
tried, and wh<^ther they shall be confined, or admitted to Vail. 
^^ If," says a very learned and acc^rate commentator, ^' upon tfai^ 
inquiry it nuuiifestiy appears that no such crime has been oom« 
milKcdt or that the suspicion entertained of the prisoner was 
wholly groundless, in such cases only it is lawful totsdly to dis« 
c hsfcgM Mm ; othtei:wise he must either be committed txi prU 
sott^rgMFebail." . , 

The sp^fic charge brought against the prisoners is treason 
in levying war against the United States. 

As tfafre is no crime which can more e^ite and agitate; the 
passtoni •f fi|ien than treason, no charge demands more from 
the.tribuii||| l)efore which it is made a deliberate and temperate 
mqwy* Whether this inquiry be directed to the fact or the 
iMWf jnone cao^ be more solemn; none more important to the 
citizen or to the government; none can more afiea the aa£ety 
dFboth. 

To prevent the possibility of those calamities which result 
frovs the extension of treason to offences of minor importanoei 
that great fundamental law which defines and limits the vai^ 
rious departments of our government, has given a rule on the 
sabj/ect, both to the legislature and the courts of America^ 
which neither can be permitted to transcend* 

^* Treason against the United States shall consist only la 
levying^ war against them, or in adhering to their enemieSf 
giving^ them aid and comfort/' 

To constitute that specific crime for which the prisoner! 
DOW before the court have been committed, war must be ac« 
rnaOy levied against the United States* However flagitioite 
mav be the crime of conspiring to subvert by force the |[o- 



24 

t. 

Mexico •etxsXB %o faiive4>een the first and most matured p^rt of 
his plan, if indeed it did not constitute a distinct and separate 
plan, upon, the success of which other schemes atijll more «ttl« 
pable, but Mt yet' well digested, might depends Maps md 
other information preparatory to its execution, and which would 
rather indicate thnt it was the immediate object, had been pro-* 
cur^; and for a considerable time, in repeated conversations, 
the whole effosia of colonel. Burr were directed to prove to the 
witness, who was to have held a high command under Mm, the 
practicability of the enterprize, and in explaining to him the 
means by which it was to be effected. 

This deposition exhibits the various schemes of colonel Bun;, 
and its materiality depends on connecting the prisoners at th# 
bar in such of those schemes as were treasonable* For this 
puipose the affidavit of general Wilkinson, comprehending in its 
body the substance of a letter from colonel Burr^ has been of* 
fered and was received by the circuit court. To the admission 
of this testimony great and serious objections have been made* 
It has been urged, that it is a voluntary^ or rather an extraju- 
dicial affidavit made before a person not appearing to be a ma* 
gistrate, and contains the substance only of a letter, of which 
the original is retained by the person who made the affidavit. 

The objection that the affidavit is extrajudicial, resolves it« 
self into the question, whether one magistrate may commit on 
an affidavit taken before another magistrate : For if he may, an 
affidavit made as the foundation of a commitment, ceases to be 
extrajudicial, and the person who makes it would be as liable 
to a prosecution for perjury as if the warrant of commitment 
had been issued by the magistrate before whom the affidavit 
was made* 

To decide that an affidavit made before one magistrate 
would not justify a commitment by another, might in many 
cases be productive of great inconvenience, and does not ap« 
pear susceptible of abuse if the verity of the certificate be esta* 
blished. Such an affidavit seems admissible on the principle 
that before the accused is put upon his trial, all the proceedings 
are ex parte* The court therefore overrule this objection. 

That which questions the character of the person who has on 
this occasion administered the oath is next to be considered. 

The certificate from the office of the department of state has 
been deemed insufficient by the counsel for the prisoners ; be- 
cause the law does not require the appointment of magistrates 
for the territory of New-Orleans to be certified to that office ; 
because the certificate is in itself informal, and because it does 
not appear that the magistrate had taken the oath required by 
the act of conrress. 

The first of these objections is not supported by the law of 



25 

the case, and the second may be so easily corrected, retaining 
however any final decision, if against the prisoners, until the 
correction shall be made. With regard to the third, the ma- 
gistrate must be presumed to have taken the requisite oaths, 
since he is found acting as a magistrate. 

On the admissibility of that part of the affidavit which pur- 
ports to be as near the substance of the letter from colonel Burr 
to general Wilkinson as the latter could interpret it, a division 
of opinion has taken place, in the court. Two judges are of 
opinion that as such testimony delivered in the presence of the 
prisoner on his trial would be totally inadmissible, neither can 
it be considered as a foundation for a commitment. Although 
in making a commitment the magistrate does not decide on the 
guilt of the prisoner, yet he does decide on the probable cause, 
and along and painful imprisonment may be the consequence 
of his decision. This probable cause therefore ought to be 
moved by testimony in itself legal, and which, though from the 
nature of the case it must be ex parte, ought, in most other re- 
spects to be such as a court and jury might hear. 

Two judges are of opinion that in this incipient stage of the 
prosecution an affidavit stating the general purport of a letter 
may be read, particularly where the person in possession of it 
is at too great a distance to admit of his being obtained, and that 
a commitment may be founded on it. 

Under this embarrassment it was deemed necessary to look 
into the affidavit for the purpose of discovering whether if ad- 
mitted, it contains matter which would justify the commitment 
of the prisoners at the bar on the charge of treason. 

That the letter from colonel Burr to general Wilkinson re- 
lates to a military enterprize meditated by the former has not 
been questioned. If this enterprize was against Mexico, it 
would amount to a high misdemeanor ; if against any of the ter- 
ritories of the United States, or if in its progress the subversion 
of the government of the United States, in any of their territo- 
ries was a mean clearly and necessarily to be employed, if such 
mean formed a substantive part of the plan, the assemblage of 
a body of men to efkct it would be levying war against the 
United States. 

The letter is in language which fiimishes no distinct view of 
the design oCthe writer. The cooperation, however, which ia 
stated to have been secured, points strongly to some expedi- 
tion against the territories of Spain. After making these ge- 
neral statements the writer becomes rather more explicit and 
says, ^Burr's plan of operations is to move down rapidly from 
die falls on the 15thof November with the first 500 or 1000 
men in light boats now constructing for that purpose, to be at 
Natchez between the 5th and 15th of December, there to meet 

Vol. I. J} 



26 

Wilkinson': then to determine whether it will be ei^edient in 
the first instanee to seize on or to pass by Baton Rouge- The 
people of the country to which we are going are prepared to 
receive us. Their agents now with Burr say that if we will 
protect their religion and will not subject them to a foreign 
power, in three weeks all will be settled." 

There is no expression in these sentences which would jus* 
fify a suspicion that any territory of the United States was the 
object of the expedition. 

For what purpose seize on Baton Rouge ? why engage Spain 
against this enterprize, if it was designed against the United 
Sutes? 

"The people of the country to which we are going are pre- 
pared to receive us." This language is peculiarly appropriate to 
a foreign country. It will not be contended that the terms would 
be inapplicable to a territory of the United States, but other 
terms would more aptly convey the idea, and Burr seems 
to consider himself as giving information of which Wilkinson 
was not possessed* When it is recollected that he was the go« 
vernor of a territory adjoining that which must have been 
threatened, if a territory of the United States was threatened, 
and that he commanded the army, a part of which was station- 
ed in that territory, die probability that the information com« 
municated related to a foreign country, it must be admitted, 
gains strength. 

"Their agents now with Burr say that if we will protect 
their religion and will not subject them to a foreign power, in 
three weeks all will be setded." 

This is apparently the language of a people who, from the 
contemplated change of their political situation, feared for their 
religion, and feared that they would be made the subjects of a 
foreign power. That the Mexicans should entertain these 
apprehensions was natural, and would readily be believed* 
Xhey were, if the representation made of their dispositions 
be correct, about to place themselves much in the power of 
men who professed a faith different from theirs, and who by- 
making them dependent on England, or the United States, 
would subject them to a foreign power. 

That the people of New*Orleans, as a people, if really enga- 
ged in the conspiracy, should feel the same apprehensions, and 
require assurances on the same points, is by no means so ob- 
vious. 

There certainly is not in the letter delivered to general Wil« 
kinson, so far as that letter is laid before the court, one syllable 
which has a necessary or a natural reference to an enterprize 
against any territory of the United States. 
. That the bearer of this letter must be considered as acquaint* 



27 

ed with Its contents, is not to be controverted. The letter and 
his own dicclarations evince the fact* 

After stating himself to have passed through New- York and 
the western states and territories, without insinuating that he 
had perfionned on his route any act whatever, which was con^ 
nected with the enterprize, he states their object to be ^^to car* 
ry an expedition to the Mexican provinces.'' 

This statement may be considered as explanatory of the let- 
ter of colonel Burr, if the expressions of that letter could be 
thought ambiguous. 

But there are two other declarations made by Mr. Swartwout, 
which constitute the difficulty of this case. On an inquiry . 
from general Wilkinson, he said, ^^ this territory would be re- 
volutionized,* where the people were ready to join, and that 
there would be some seizing, he supposed, at New-Orleans* 

If these words import that the government, established by 
the United States in any of its territories, was to be revolution- 
ized by force, although merely as a step to, or a mean of exe- 
cuting some greater projects, the design was unquestionably 
treasonable, and any assemblage of men for that purpose would 
amount to a levying of war* But on the import of the words a 
difference of opinion exists. 

Some of the judges suppose they refer to the territory 
against which the expedition was intended, others to that in 
which the conversation was held. Some consider the words, 
if even applicable to the territory of the United States, as al« 
kMiing to a revolution to be effected by the people, rather than 
by the party conducted by colonel Burr. 

Butwh^er this treasonable intention be really imputable 
to the plan or not, it is admitted that it must have been carried 
into execution by an open assemblage of men for that purpose, 
previous to the arrest of the prisoner, in order to consummate 
the cnmt as to him; and a majority of the court is of opinion, 
dnt the conversation of Mr. Swartwout affords no sufficient 
proof of such assembling. 

The prisoner stated, that ^ colonel Burr, with the support 
of a powerful association, extending from New- York to New- 
Orleans, was levying an armed body of 7,000 men, from the 
state of New- York and the western states and territories, with 
a view to cany an expedition to the Mexican territories." , 

That the association, whatever may be its purpose, is -not 
ti«ason, has been already stated. That levying an army may or 
may not be treason, and that this depends on the intention 
with which it is levied, and on the point to which the parties 
Ittve advanced, has been also stated. The mere enlisting of 
men without assembling them, is not levying war. The ques- 
tion then is, whether this evidence proves colonel Burr to have 



28 

Advanced ao far in levying an army, as actually to have assem* 
bled them. 

It is argued, that since it cannot be necessary that the whole 
7,000 men should have assembled, their commencing their 
march by detachments! to the place of rendezvous, must be 
sufficient to constitute the crime. 

^ This position is correct, with some qualification. It cannot 
be necessary that the whole army should assemble, and that 
the various parts which are to compose it should haVe com- 
bined. But it is necessary there should be an actual assem- 
blage, and therefore this evidence should make the fact une- 
quivocal« 

The travelling of individuals to the place of rendezvous 
would perhaps not be sufficient. This would be an equivocal 
^act, and has no warlike appearance. The meeting of particu- 
lar bodies of men, and their marching from places of partial to 
a place of general rendezvous, would be such an assemblage. 

The particular words used' by Mr. Swartwout are, that 
colonel Burr was levying an armed body of 7,000 men* If 
the term levying, in this place, imports that they were assem- 
ble<L then such fact would amount, if the intention be against 
the United States, to levying war. If it barely imports that he 
was enlisting or engaging diem in his service, the fact would 
not amount to levying war. 

It is thought sufficiendy apparent, that the latter is the sense 
in which the term was used. The fact alluded to, if taken ia 
the former sense, is of a nature to force itself upon the public 
view, that, if the army had been actually assembled, either to- 
gether^ or in detachments, some evidence of such a&sembUngp 
would have been laid before the court. 

The words used by the prisoner in reference to seizing at 
New-Orleans, and borrowing pei4iaps by force from the bank^ 
though indicating a design to rob, and consequendy importing^ 
a high offence, do not designate the specific crime of levying 
war against the United States. 

It is, therefore, the opinion of a majority of the court, thaty 
in the case of Samuel Swartwout, there is not sufficient evi-^ 
dence of his levying war against the United States to justify 
his commitment on the charge of treason. 

That both the prisoners were engaged in a most culpable 
enterprize against the dominions of a power at peace witli the 
United States, those who admit the affidavit of general Wil« 
kinson cannot doubt. But that no part of this crime was com* 
mitted in the district of Columbia, is apparent. It is therefore 
the unanimous opinion of the court, that they cannot be tried 
in this district. 

The law read on the part of the prosecution is understood 



29 

to applf only to offences committed on the high seas, or in any 
river, haven, bason, or bay, not within the jurisdiction of any 
pfltrticular state. In these cases t)iere is no court which has 
particular cognizance, of the crime, and'thereCcM*e the place in 
which the criminal shall be apprehended, or, if he be a)>pre* 
hended where no court has exclusive jurisdiction, that to 
which he shall be first brought, is substituted for the place in 
which the offence was committed. ^ 

But in this case, a tribunal for the trial of the offence, 
wherever it may have been committed, had been provided 
by congress; and at the place where the prisoners were seized 
by the authority of the commander in chief, there existed such 
a tribunal. It would too be extremely dangerous to say, that 
because the prisoners were apprehended, not by a civil magis* 
trate, but by the military power, there could be given by law 
a right to try the persons so seized in any place which the ge- 
neral might select, and to which he might direct them to be 
carried* 

The acts of congress, which the prisoners are supposed to 
have violated, describe as offenders d)ose who begin or set on 
foot, or provide or prepare the means for any military expedi* 
tton or enterprize to be carried on from thence against the do* 
minions of a foreign prince or state, with whom the United 
States are at peace. 

There is a want of precision in the description of the of- 
fence, which might produce some difficulty in deciding what 
cases would come within it. But several other questions arise, 
which a court, consisting of four judges, finds itself unable to 
decide ; and therefore, as the crime with which the prisoners 
stand charged has not been committed, the court can only 
direct them to be discharged. This is done with the less re- 
luctance, because the disclmrge does not atquit them from the 
offence, which there is probable cause for supposing they have 
committed; and if those whose duty it is to protect the nation 
by prosecuting offenders against the laws shall suppose those 
who have been charged with treason to be proper objects for 
punishment, they will, when possessed of less exceptionable 
testimony, and when able to say at what place the offence has 
been committed, institute fresh proceedings against them. 

The order of the court was as follows : 

The United States '\ 

vs. V On a writ of habeas corpus. 

Sivartwout. j 

The arguments of die attorney general, and of the at- 
torney of the United States for the district of Columbia, 



so 

and the ailments of the counsel for the prisoner having been 
heard ; and the record of the circuit court for the county of 
Washington, containing the order by which the said Samuel 
Swartwout was committed on the charge of treason in levying 
war ag^nst the United States, and the testimony on which the 
said commitment was made, having been inspected and at- 
tentively considered, the court is of opinion that that testimony 
does not furnish probable cause for supposing that the said Sa* 
muel Swartwout levied war against the United States, and 
doth therefore direct, that he be forthwith discharged from the 
custody of the marshal. 

The same order with regard to Bollman. 



THE TRIAL 



I 



or 



COLONEL AARON BURR 



CITY OF RICHMOND, Fridat, 22d May, 1807. 

Court of the United States for the fifth circuit and iSsirici 

of Virginia* 

PRESENT^OHN Marshall, chief justice of the United 
States; and CtrusGriffik, judge of the district of Virginia. 

The court was opened at half past twelve o'clock ; when 
colonel Aaron Burr appeared, with his counsel, Messrs. Ed* 
mund Randolph, John Wickham, Benjamin Botts, and John 
Baker. 

Counsel for the prosecution ; Messrs. George Hay, district 
attorney, William Wirt, and Alexander Mac Rae. 

The clerk having called the names of the gentlemen who 
had been summoned on the grand jury, Mr. Burr's counsel 
demaaded a sight of the panel; which was shown to them: 
when Mr. Burr addressed the court to the following eifect: 

May it please the court, 

Before any further proceeding with regard to swearing 
Ae jury, I beg leave to remark some irregularity that has taken 
place in summoning part of the panel. This is the proper 
dme to make the exception. I understand that the marshal 
iu:ts not under an act of congress, but a law of the state of Vir- 
ginia, by which he is required to summon twenty-four free« 
holders of the state to compose the grand jury. When he has 
sammoned that number, his function is completed. He cannot 
on any account summon a twenty-fifth. If, therefore, it can 
be made to appear, that the marshal has struck off any part of 
the original panel, and substituted other persons in their 
flead, the summons is illegal. Such is the law and the dictate 



32 

<»f true policy; for in important cases, like the present, a dif- 
ferent course would produce the most injurious consequences. 
I consider it proper to ask the marshal and his deputies, what 
persons they have summoned, and at what periods : whence it 
may be known, whether some have not been substituted in 
place of odiers struck off the paneU When we have settled 
this objection, (^all proceed to exceptions of a different na- 
ture. ' 

Mr. BoTTs observed, that it was the 29th section of the ju« 
dicial act, which refers to the state law, besides a distinct act, 
which enumerates other duties; that neither of these laws 
specified any particular mode by which marshals were (o sum* 
mon juries in different districts. By the first section of the 
Virginia act, the sheriff is to summon twenty-four freeholders, 
any sixteen of whom appearing are to constitute a grand jury* 
The first section does not state that he is to make a return, 
but a distinct section inflicts a penalty, if he violate the duties 
prescribed by the first section; 'that is, if he fail ^^ to summon 
a grand jury, and return a panel of their names." Colonel 
Burr is anxious to have nothing more than a fair trial. The 
reports circulated, and prejudices excited against him, justify 
a strict attention to his rights. He therefore asks the strictest 
scrutiny into past and subsequent measures. An important in- 
terest is involved in the authority of the grand jury. And if 
there be any irregularity in the marshaVs summons, it ought 
now to be rectified. By the act of Virginia, a sheriff, and by 
the act of congress a marshal, are mere ministerial officers 
bound to discharge certain duties. He is to summon twenty- 
four jurors. When that act is done, it is irrevocable, and his 
duty at an end. This court only possesses the authority to 
excuse, any of those who have been summoned, and to direct 
the marshal to substitute others, till the necessary quorum be 
completed. 

Mr. Botts further observed, that he had no intention of cast- 
ing the slightest imputation on the marshal for his conduct in 
this transaction; that his honourable character placed him 
above suspicion, and the fault, if any, must have arisen from 
ofiicial misconceptions ; that he did not propose to interrogate 
major Scott in any manner that might possibly criminate him; 
but that the court had a right to inquire, and, if any error was 
committed, to correct it. That if he was overruled in this mo- 
tion, he would then crave leave of the court .to produce testi- 
mony as to the facts: that he took it for granted, that if a sin- 
gle moment intervened between the summoning of a juror and 
the meeting of a court, the court alone had the power to dis« 
charge him; that with regard to the present panel it would 



33 

appear, fhzt the marshal, after summoning one individual, had 
notified another to attend; in other words, he had summoned 
him according to the legal definition of the term ^* summons." 
That this was not the duty of the marshal; thai when the ori- 
ginal panel was complete, his duty was at an end,' and he 
must return that ven^ panel precisely, without any addition* 
What mischiefs might not result from a diflFerent practice, par- 
ticularly in cases of extreme importance, where the gorern- 
ment was concerned, «ince the marshal himself depended on 
the government for the duration of his commission? 

Mr. Botts therefore contended, that the ministerial duties 
of a marshal ceased with the summons which he gave ; and 
that, if the jurors did not appear, it was the privilege of the 
court to supply any deficiency. He cited the decision of the 
supreme court of the United States in the case of Marbury v. 
Madison, to show, that when the ministerial duties of an offi- 
cer were discharged, his power necessarily ceased, and his act 
was irrevocable. This doctrine was of universal application in 
law, both in America and England. It was applicable to a 
sheriflf, after he had served a common writ of ^eri facias. If 
he summon a petit juryman, who fails to appear before the 
court, it is the rieht of the court alone to fine or to excuse 
him* Mr. Botts then concluded, that he would ask the mar- 
shal, who were the twenty-four whom he had first summoned; 
for that may constitute the grand jury. Every one beyond that 
number was illegally summoned. It was the 'right of colonel 
Burr to demand such a purgation of the panel. 

Mr. Hat, the district attorney, observed, that he was not 
prepared to make any observations upon this question, as it 
was a point which he had never before had any occasion to 
consider; that the proposition was, however, of no great im- 
portance, since, if any of them were set aside, there would 
still be a sufficient number to constitute a grand jury; or the 
deficiency might be supplied by a new summons among the 
bystanders. If there were, in reality, any objection to the re- 
gularity of the summons, he was wiUing to accommodate the 
opposite counsel ; that he was not certain how far it was strictly 
proper to interrogate, or examine into the time of summoning 
the different members of the panel, as he had not been very 
conversant with business of this kind. He was, however, con- 
tent that the court should decide ; and if it should be their 
opinion that the marshal should be interrogated, how many 
jurymen he had summoned, and when he had discharged 
them, he should feel perfectly satisfied. 

Mr. WiCKHAM-^Before we go into this inquiry, we de- 
dare, that we mean no personal imputation upon the respecta- 
VoL. I. E 



34 

ble gendemta who is the marshaL Hb iafentions were cer* 
tainly pure. It is an error of judgment alone to which we ob* 
ject* But in the present case, where such important interests 
are at suke, and where such unjustifiable means have been 
used to prejudice the public mind against colonel Burr, 
it 18 his right to take every advantage which the law gives 
him. We are prepared to show, that when a person is bound 
in a recognisancife, he has a rig^t, at this period of the busi* 
ness, to come before the court widi his exceptions to the grand 
jury; and if in any other case, why not in one of such deep 
importance as the present? In support of this position, Mr. 
Wickham cited 2 Hawkins's Pleas of die Crown, page 307, 
sect. 16, and 3 Bacon's Abridgment, page 7^S* Whether we 
might afterwards file a plea in abatement for the error com* 
mitted, is not now to be discussed. It is colonel Burros anxious 
desire, that this whole aSair should terminate here, and that 
this grand jury may determine his case. 

The chief justice called for the law of Virginia. 

Mr. Hay read it«— -Revised Code, page 100, sect. 2. — The 
construction put upon this part of the law seems to me far more 
rigid than sound sense warrants. By this law, the marshal is 
empowered to select twenty-four freeholders, legally qualified 
to serve on the grand jury. The officer, in many cases neces* 
sarily ignorant of the situation of an individual, summons him 
to attend. The person informs him, that, from some personal 
misfortune, some domestic calamity, or some indispensable bu- 
siness, it is impossible for him to attend. We ask, whether the 
accurate construction of this law forbids him to summon another 
in his place ? Where is the legal authority to prove, that when 
he has once summoned twenty-four jurymen, his ministerisd 
function is at an end? The moment it appears in court, that 
the legal number of jurors is not present, he is to fill up his 
panel from the bystanders. We appeal to the candour of the 
opposite counsel, to point out the real distinction between the 
two cases. Why should the marshal have the right to fill up his 
panel, when it is once ascertained before the court, that some 
of the jurymen have not actually attended, and yet deny him. 
the right of substituting others in the place of those he has 
summoned, but who, he is satisfied, before the meeting of the 
court, cannot attend? Instead of a difference, the two cases 
are strikingly parallel. What the fact was, Mr. Hay said he 
knew not, but he believed that some of those who were said 
to be substituted had not been positively summoned by the 
marshal, but had been merely applied to, to know whether they 
could attend. 



35 

Mr. WiCKRAM contended, that the counsel for the United 
States had not fairly met the question. There is a doubt whe- 
ther colonel Burr has not a right to come forward with his ex<* 
ceptions now to the grand jury. As the authorities on this 
subject are short, he would take the liberty of reading them 
to the court. (He read those he before cited.) From these au- 
tliorities it manifestly appears, that a person bound in a recog- 
Msance, had a right, before the grand jury were sworn, to state 
his exceptions to the mode of impaneling them. It is for this 
reason that colonel Burr has, in this stage of the business, 
come forward with his objections. Mr. Hay contends, that 
our construction of the law is more rigid than sound policy de- 
mands* Bat when the words of the law are obvious, why 
should we resort to a dubious construction ? ^' Ita kx scripta 
estm^^ But if we are to wander into the wide field of policy, 
how con^pletely would it bear against the gendeman's cause ! 
God forbid, sir, that I should utter the slightest imputation 
upon the character and official conduct of major Scott ; they 
soar above suspicion. But if once the marshal, who holds his 
commission at the will of the government, were permitted to 
alter the panel as he pleased, the life of every citizen in this 
state would be held at his pleasure. It is therefore essentially 
important, that the ministerial officer should rigidly pursue the 
statute from which he derives his authority. And what is his 
duty in the present instance ? He is to summon twenty-four 
freeholders to serve on the grand jury^ any sixteen of whom 
may constitute a quorum. Mr. Hay had declared, that this pro- 
vision was mere matter of form ; tor if there be not a sufficient 
number present to constitute a quorum, the marshal may make 
up to the full number twenty-four. But that is not the fact. If 
sixteen jurymen attend, the marshal cannot add one more. Let 
us then apply a suppositious case. The marshal, if notified that 
one of the jury whom he has summoned cannot attend, is au- 
thorised, according to Mr. Hay's doctrine, to summon a sub- 
stitute* It is no impediment to the exercise of this authority, 
that there be the legal quorum of sixteen remaining upon the 
panel; he may proceed to summon substitutes till he com- 
jdetes the whole number twenty-four. And yet, if the case 
were to happen in court, the marshal would certainly have no 
authority to complete the whole number. Why then suppose 
such a difference of authority in and out of court? Why not 
rather suppose, that the marshal has no authority to do that 
out of court, which he cannot do before the court* Let us 
8iq>pose another case* A grand juror has been summoned for 
several weeks before the meeting of the court. The bare au- 
diority of the marshal is sufficient, according to this doctrine, 
to excuse him from serving, and to substitute another in his 



36 

place, only one hour before the meeting of the court. Mr. 
Wickham declared he could mention the case of a man who 
had been excused from this very panel. 

Major Scott (the marshal.) — Name him, sir: I demand his 
name. 

Mr. Wickham declared, that he meant no imputation upon 
major Scott, but he would not submit to such interruptions* 
If no sufficient excuse is given by the absent juror, he is sub- 
ject to a fine. Is it then contended, that the marshal is to 
judge in the place of the court ? not only to relieve the pereon 
of the juror, but his property also from die fine ? The words 
of this law are too plain to be mistaken. It admits of no lati- 
tude of construction. But if the marshal has really transcend- 
ed his authority, yet I do not hesitate to declare my opinion, 
that he intended to discharge his duty with fidelity. It was 
only an error in judgment, to which all .men, however well 
versed in the law, are liable. 

Mr. Hay. — Will the court indulge me with a single addi- 
tional remark? I stated before, that when the marshal found, 
that one of the jury whom he had before summoned could not 
attend, he was authorised to summon a substitute. Mr. Wick- 
ham, however, contends, that the marshal cannot summon 
others, after sixteen have appeared* But for what reason? Be- 
cause there is, in reality, no occasion for it. The object of the 
law is already attained. The grand jury is complete, and it is 
unnecessary to take up further time, when the grand juiy is 
legally full. But before the court convenes, how is it possible 
for the marshal to know how many of those summoned will 
attend? According to the doctrine of the opposite counsel, 
there may be no grand jury. 

The chief justice inquired, whether the question had ever 
come before the state courts ? 

Mr. Randolph. — Not, sir, to my knowledge. In nearly 
thirty years practice, (and a considerable part of that time I 
was attorney general for the commonwealth) no occasion has 
occurred for such an objection. I have never seen a case 
where it was so absolutely necessary to assert every privilege 
belonging to the accused, as in this. But as to the right itself^ 
abstractedly considered, I have never hesitated a moment 
about its existence. It is written in broad intelligible characters. 
Sir, if we ever submit to these relaxations of the rights of the 
accused, a time may possibly come, when we may lament the 
precedent we have established ; when men less virtuous than the 
present respectable marshal, shall succeed to his functions. But 
the question in the present case is, not what has been the prae«. 



37 

tice in the state. courts, but what is the right? If this right has 
never been before asserted, it is because there never was an oc« 
casion which so imperiously demanded it as the present; because 
there never, was such a torrent of prejudice excited against any 
man, btfore a court of justice,* as against colonel Burr, and by 
means which we shaU presently unfold. 

Chief Justice.— As this question has never been decided 
before the state courts, we must refer to the words of the act of 
assembly. There can be no doubt that this is the time when the 
accused has a right to take exceptions to the jury ; and the only 
doubt can be, is this a proper exception i The marshal is au- 
thorised by law to summon twenty-four jurymen ; but he is not 
to summon a twenty-fifth. Of course, the twenty-fifth is not le- 
gally summoned, unless he has the power to discharge a person 
already summoned. He has no such power, unless the jury be 
composed of bystanders. The twenty-four first summoned must 
compose the jury, sixteen of whom constitute a quorum. It fol- 
lows, therefore, that no one can be on the grand jur}', unless he 
be one of the twenty-four first summoned, or one who has been 
selected from the bystanders by the direction of the court. 
When the panel has been once completed by the marshal, its 
deficiencies can be supplied only from the bystanders. 

The chief justice further observed, that he was not well ac- 
quainted with the practice in the state courts ; but he believed 
the practice of sheriffs to be, to excuse a man summoned on the 
jury, if they are satisfied that his excuse is reasonable. So it 
may have been with the officer of this court, who acted, he had 
no doubt, with the most scrupulous regard to what he believed 
to be the law. That the courts however, thought the marshal 
had no such dispensing power. One very obvious reason against 
die marshal's possessing this power of substitution, is, that if a 
person summoned should come into court, and prove that he 
had been actually summoned, he certainly would be on the 
grand jury, if one of the twenty-four first summoned. The ge- 
neral principle is, that when a person is put in the panel he 
stands upon it, and cannot be displaced by the marshal. There 
18 an evident distinction between actually summoning a grand 
jurynian, and merely talking to a person about summoning him. 
The court is therefore of opinion, that a person substituted in 
the place of one actually summoned, cannot be considered as 
being on the panel. 

Mr. Burr. — The court having established the principle, we 
moat ask Uieir aid to come at the facts. We wish to know, 
when certain persons were summoned, when discharged, and 
whether other persons were substituted in their stead. 

The marshal said, that he had not the least objection to state 
an die facts necessary to be known on this occasion. A few 



38 

4 

days ago he had received a letter from colonel John Taylor, of 
Caroline, one of those whom he had summoned on the jury, in 
which he states, that a hurricane of wind had destroyed his car- 
riage-house, and with it his carriages, so that he could not use 
them; and that his indisposition prevented his riding to Rich- 
mond on horseback. This letter he had laid before both their 
honours, and the chief justice had deemed his excuse reasona- 
ble. He had then summoned Mr. Barbour to serve in colonel 
Taylor's place. He had also received a letter from Mr. John 
Macrae, informing that he was going to leave the state for 
his health. He had in consequence summoned doctor Foushee 
in his place. The marshal added, that he felt it to be his duty 
to bring twenty-four jurymen into court, and acted upon this 
principle. 

The court decided, that Mr. Barbour and Dr. Foushee, the 
substituted persons, were not on the grand jury. 

Mr. Burr. — I understand that the panel is now reduced to 
sixteen, and that this is the proper time to make any other ex- 
ceptions to the panel. It is with regret, that I shall now proceed 
to exercise the privilege of challenging for favour. In exercising 
this right, I shall perhaps appeal to the authority of the court to 
try these jurors. Lest it may be contested, it is better to set- 
de the principle first. 

Mr. Hat, without directly contesting, called for the law to 

justify the application. 

» 

Mr. Burr, — Let it be distinctly understood, that I clain^ the 
same right of challenging " ior favour*'* the grand jury, that I 
have of challenging the petit jury. I admit, that it is not a pe- 
remptory challenge, but that I must show good cause to support 
the challenge. It will be of course necessary td appoint triers 
to decide, and before whom the party and the witnesses to prove 
or disprove the favour, must appear. 

Mr. BoTTs. — There can be no question, that a peraon stand- 
ing in the situation of colonel Burr, may challenge the jury for 
favo\ir. In civil cases, any individual may challenge a jury for 
favour or partiality to his antagonist ; a fortiori, it must exist in 
criminal cases. Mr. Botts here cited authority in support of his 
principle, and admitted, that the cause of challenge must be 
proved by testimony ; that it was necessary to prevent such im- 
purity from creeping into the comniencement of this trial, as 
must contaminate all its subsequent stages ; that no reflection 
against the integrity of the present jurors was intended ; but in 
principles of plain common sense it was proper to remove every 
cause that might .defeat the purposes of justice. 

Mr. Hat disavowed the intention of opposing soibstantisd 



39 

exceptions, «nd admitted the law to be as stated by the opposite 
couMeL 

Mr. Burr. — I shall, then, proceed to name the persons and 
causes of challenge. The first I shall mention is William B. 
Giles, against whom there are two causes of challenge. The 
first is a matter of some notoriety, because dependent on certain 
documents or records: the second is a matter of fact, which 
must be substantiated by witnesses. As to the first, Mr. Giles, 
when in the senate of the United States, had occasion to pro- 
nounce his opinion on certain documents by which I was con- 
sidered to be particularly implicated. Upon those documents 
he advocated the propriety of suspending the writ of habeas cor- 
pus* The constitution however forbids such suspension, except 
m cases of invasion or insurrection, when the public safety re- 
quires i^ It was therefore to be inferred, that Mr. Giles did 
suppose, that there was a rebellion or insurrection, and a public 
dniger, of no common kind* It is hardly necessary to observe, 
diat with this rebellion, and this supposed danger, I myself had 
been supposed to be connected. Perhaps this may be a sufficient 
reason to set aside Mr. Giles. But if not, I shall endeavour to 
establish by evidence, that he has confirmed these opinions by 
public declarations ; that he has declared that these documents, 
involving me, contained guilt of the highest grade. 

Mr. BoTTs.^— There is no necessity of adding any thing to 
jhe observations of colonel Burr. If the right of challenge 
exists, the right to try the challenge exists also. But while I am 
up, i will declare, that no reflection is intended to be made on 
tbe character or conduct of Mr. Giles. That gentleman will be 
candid enough to admit, that there is not the least design to 
wound bis feelings. It is with the utmost reluctance that colonel 
Burr has prevailed upon himself to advance this exception. I 
hare authorities, however, to prove, that these two causes are 
auficicnt to disaualify Mr. Giles. The first relates to his public, 
tbe second to his individual conduct. 

Mr. Hay. — How many of the panel does the coiuisel mean 
to object to ? 

Mr. BoTTs. — Only two. 

Mr. Giles. — As to exceptions to myself personally, I can 
have no objection to have them tried. The court will, however, 
perceive the delicate situation iii which I shall be placed. The 
triers will have to interrogate witnesses, and the result either 
way is ineligible. I have no objection to state to the court every 
impression I have ever had upon this subject. But to culling 
witnesses to detail loose conversations, so liable to be misunder- 
stood, forgotten, or misrepresented, I am certainly opposed. 



I 



40 

Mr. Hat. — I was about to make a propositkm which might 
relieve us from all this useless embarrassment, and which might 
eratify the views of the accused. If the gendemen who are cbal* 
lenged on die jury will consent to withdraw themselves, I can 
have no objection. I am content that every one who has made 
declarations expressive of decisive opinion, should be with- 
drawn from the jury. I am not disposed to spend time on such 
points as these. 

Mr. Burr. — It will certainly save time, and I assent to the 
proposition. 

Mr. Giles. — The circumstances which have just occurred 
place me in an unpleasant situation. I have no objection to dis- 
close, in the usual Way, with candour, the real state of my mind 
in relation to the accused. But I have an objection to the intro- 
duction of witnesses to prove casual expressions, which are so 
liable to be misconceived. In the present state of things, expres- 
sions might be imputed to me which I never used, or expressions 
which I really used might be mistaken or misrepresented by the 
witness ; or the witness might deduce inferences from my ex-^ 
pressions which they did not justify. It was by no means agree- 
able to me to have been summoned on this grand jury. But for 
some time past I have invariably pursued this maxim : ^' neither 
to avoid nor to solicit any public appointment; but when called 
to the discharge of any public duty by the proper authority^ con- 
scientiously to attempt its execution. In undertaking to serve 
on the present grand jury, I was influenced by the same, consi- 
deration. With respect to my public conduct, I presume it is 
of public notoriety, and will speak for itself. I not only voted 
for the suspension of the privilege of the writ of habeas corpus^ 
in certain cases, but /proposed that measure. I then thought, 
and I still think, that the emergency demanded it ; that it was 
fuUy justified by the evidence before the senate ; and I now re- 
gret that the nation had not energy enough to support the senate 
in that measure. This opinion was formed upon the state of the 
evidence before the senate, which, in all questions of a general 
nature, is of a very different character from the legal evidence 
necessary in a judicial investigation. My mind is, however, free 
to receive impressions from judicial evidence. In relation to 
the accused, I feel very desirous, and have often so expressed 
myself, that the various transactions imputed to him should un» 
dergo a full and fair judicial investigation ; and that, through 
that medium^ they should receive their just and true character^ 
whatever in point of fact it might be, and that he should be pre- 
sented in that character to the world. I have no personal re- 
sentments against the accused ; and if he has received aqy in- 
formation inconsistent with this statement, it is Qot true. How- 



4l 

^er, as it is left to me to elect, whether to serve on the gtond 
jury or not, I will certainly withdraw. 

CHiEr*Ju8TiG£.«^The couit thinks, that if any gentleman 
has made up and declared his mind, it woidd be best for him 
to withdraw. 

Mr. BuftH.— ^A gentleman who has prejudged this cause, is 
certainly unfit to be a juryman* It would be an effort above hu- 
man nature for this gentleman to divest himself of all prepos- 
aesaions. I believe his mind to be as pure and unbiassed as (hat 
of any gentleman ubdeT such circumstances. But the decisive 
epinion he has formed upon this subject, though in his public 
character, disqualifies him for a jur3rman. But he is one of the 
last men on whom I would wish to cast any reflections. So far 
firom having any animosity against hini, he would have been one 
of those whom I should have ranked among my personal friends. 

The other gendeman whom I shall challenge is Wilson Gary 
Hicholas. 

Mn Nicholas desired duit the objections against him should 
be Slated. 

Mr. BuER. — ^The objection is, that he has entertained a bit-> 
ler personal animosity against me ; and therefore I cannot expect 
from lum that pure impartiality of mind which is necessary to a 
correct decision. I feel die delicacy of iny situation ; but if the 
gendeman will consent to withdraw, I will waive any further 
inqiuiy. 

Colonel Wf I.80R C. Nicholas rose, and addressed the court 
as foOows': 

My being in this situation certainly was not a thing of choice. 
When I was summoned by the marshal^ I urged him in the 
strongest manner to excuse me. I mentioned to him, that it 
would be extremely inconvenient to me to attend the court, and 
that it would be very unpleasant to serve on the jury, on ac- 
count of the various relations in which I had stood to colonel 
Bttrr« I had been in congress at the time when the attempt was 
made to elect colonel Burr president of the United States. My 
feelmgs and opinions on that occasion are well known. I had 
served three years in the senate while colonel Burr was presi- 
dent of that body, and was one of those who, previous to the 
last election, had taken a very decided part in favour of the no- 
mination of the present vice president, lor the office at that time 
fiDed by colonel Burr. Moreover, from the time that colonel 
Burr first went to the western country, liiy suspicions were very 
much excited as to his probable objects, in that part of the 
United States; in conseauence of which I gave early and per- 
haps too great credit to the charges which were brought against 

Vol. I. F 



42 

him. Such was my opinion of the importance of New^Or- 
leans, not only to the pro&perity, but to the union of the states^ 
that I felt uncommon anxiety at what I believed to be the state 
of our affairs in the west, and had expressed my impressions 
very freely in conversation, and in letters to my friends during 
the last winter. Under these circumstances, I doubted the pro^ 
priety of my being put on the jury; but I felt no dt9truBt qf my^ 
self as I was confident that I could discharge the duty undec a 
just impression of what I owe to my country, to the accused* 
and to my own character, l*he marshsj assured me, that he felt 
the strongest dispqsition to oblige me, but that he thought be 
could not do it, consistently with his duty. He supposed there 
was scarcely a man to be found, who had not formed and t\* 
pressed opinions about colonel Burr. That he too was in a situa- 
tion of great delicacy and responsibility, and that, without the 
utmost circumspection on his part, he would be exposed to cen- 
sure. I renewed my application to the marshal several times, 
and always received the same answer. Thus situated, I deter- 
mined to attend the court, both from a sense of duty, and be- 
cause I would not put it in the power of the malicious, and 
those disposed to slander me, to assign motives for absenting 
myself, which had no kind of influence on me. Another reason 
for pursuing this course prescind itself some time after I had 
formed this determination. I conceived that an attempt luid 
been made to deter me from attending this court. I was in- 
formed by a friend in the ciw, that he had heard, that one of 
the mQst severe pieces which had ever been seen, was preparing 
for publication, if I did attend, and serve on the grand jury. 
From what quarter this attack was to come, I do not know. 
The only influence which that circumstance had, was to confirm 
me in the determination I had made; as I was ikiuch more in- 
clined to defy my enemies, than to ask their mercy or forbear- 
ance. From the first I hesitated, whether I ought not to make 
the same representation to the court, that I had made to the 
marshal. As I was in doubt on the subject before i came from 
home, I committed to paper the substance of what I have now 
said, and consulted three gentlemen who were lawyers, men of 
honour, and my personal friends. Their advice to me was noc 
to mention it, for they did not believe that the court would or 
ought to discharge me for the reasons I had mentioned. As I 
was in doubt myself, I determined to follow their advice, and 
the more readily as they seemed confident that I would not be 
discharged, and I was not scrupulous of acquiring, in this way, 
a reputation for scrupulous delicacy. I was penecdy willing, 
that my reputation should rest on the general tenor of my life, 
and did not believe that my character required such a prop. At 
present I feel myself embarrassed how to act. I certainly was, 
and am, anxious not to serve on the jury, but am unwilling to 



4fi 

wichdmr, lest it should be thought that I shrink from (he dis^ 
chnige of public duty of great responsibility, and I am not wiU 
Img to be driven from the dischat^ of thaf duty in a way which 
flboidd lead to a belief, that the objection to me is either acknow- 
ledged to be well founded, or has been sustained by the courts 
Upon this sul]ject, the example of Mr. Giles has great weight 
with me. That consideration, and. a hope that my motives can- 
not now be misunderstood or misrepresented, will induce me to 
do as he has done. . 

Colonel BuRit.«-*The circumstance mentioned by the gentle- 
man, that an attempt has been made to intimidate him, must 
ha:ve been a contrivance of some of my enemies, for the purpose 
of irritating him, and increasing the public prejudice against 
me ; rince it was calculated to dirow a suspicion on my cause. 
Sttch^ an act was never sanctioned by me, nor by any of my 
friends. I view it with indignation, and dischumany knowledge 
of the fact in question. 

The court estl^lished the following, as being the proper ques- 
tiom to be put to the jurors : First, Have you mad^ up your 
mind on the case, or on the guilt or innocence of colonel Burr, 
from the statements you have seen in the papers or otherwise ? 
and finally, Hs^ve you formed and expressed for delivered) an 
opinioo on the guilt or innocence of colonel Burr (or the ac- 
cused?} 

Major Joseph £ggl£ston now addressed the court to this 
effect; 

I ttfiderstood die court to say, that this was the proper time to 
apply to be excused from serving on the grand jury. Having 
been summoned by the marshal to serve as a grand juror, I 
wrote a letter to that officer, desiring him to excuse me ; but he 
refused* In addition to some private reasons, there is one of a 
poUic nature, which I hope will exempt me from being retained 
CO the jury. As soon as I read the deposition of general Eaton 
m die newspapers, I felt and expressed considerable warmth and 
indignation on the subject likely to come before the grand jury; 
and an that account it might be both indelicate and improper in 
me to serve on the grand jury, however correct the decision of 
that body might be. 

The chief justice having asked whether he had formed and 
expressed an opinion on this subject, major Eggleston repeated 
what he had said as to his warmth after reading general Eaton's 
deposition, and said, that he had expressed his opinion in public 
company ; yet he declared his belief, that he could so far divest 
himself of his previous opinions and feelings, as to be able to 
decide according to the testimony and the law* It had been 



44 

said, that a bias might imperceptibly remain upon the minds of' 
men of the purest intentions, and as it might possibly be the case 
with him, he again desired to be excused. 

Mr. Burr* — Under different circumstances, I might think 
and act differently ; but the industry which has been used 
through this country to prejudice my cause, leaves me very 
little chance, indeed, of an impartial jury. There is very littk 
chance that I can expect a better man to try my cause. His 
desire to be excused, and his opinion that his mind is not en- 
tirely free upon the case, are good reasons why he should be 
excused ; but the candour of the gentleman, in excepting to him- 
self, leaves me ground to hope, that he will endeavour to be im- 
Eartial. I pray the court to notice, fix>m the scene before us, 
ow many attempts have been made to prejudge my cause. 
Qn this occasion I am perfectly passive. 

Chief-Justice. — ^What are your impressions mowi Have 
you formed a decisive opinion on this case? 

Mr. Eggleston.*— I have formed some opmion on the state* 
ment and evidence I have seen; and if no other evidence were 
to be produced, I should probably retain it. I am willing to 
hear other testimony, but I wish to be excused. 

The court did not excuse him. 

4 

The panel was here called over, and fourteen only appeared : 
upon which the marshal requested the clerk to add thereto the 
names of John Randolph and William Foushee. The court 
then instructed the clerk to place Mr. Randolph as foreman, 
who being called on to take the foreman's oath, addressed the 
court thus : 

May it please the court, 

I wish to be excused from serving. I will state the reasons 
of that wish. I have formed an opinion, not on the case now 
before the court, because I know not what that case is; but con- 
cerning the nature and tendency of certain transactions imputed 
to the gentleman now before you. I do trust, that without arro- 
gating to myself any thing more than becomes a man, I would 
divest myself of this prepossession upon evidence. But I should 
be wanting in candour to the court and the party accused, if I 
did not say, that I had a strong prepossession. 

Mr. Burr. — Really I am afraid, that we shall not be able 
to find any man without this prepossession. 

Chief Justice.— «The rule is, that a man must not only 
have formed, but declared an opinion, in order to exclude him 
from serving on the jury. 

Mr. Randolph. — I do not recollect to have declared one. 



45 

Upon which Mr. Randolph was sworn as foreman, and the 
rest of the panel called to the book^ until it was Dr. Foushee's 
turn. He stated to the court, that he felt some difficulty about 
the propriety of serving on the jury ; that, after hearing the 
number of excuses which were made and overruled by Uie court, 
he was unwilling to bring himself before the court, to claim 
SD exemption from serving. But having the same feelings with 
other gendemen, he must move the court to excuse him. 

After a few desultory remarks by Mr. Burr and Mr. Wick- 
ham, doctor Foushee stated, that after having read the presi- 
dent's message, general Eaton's deposition, and the publica- 
tions in the newspapers respecting colonel Burr, and having 
heard little but from those publications, he had formed an opi- 
nion of colonel Burr's guilt ; and unless other testimony were 
adduced, his impression would probably be retained. That his 
present opinion might, however, be said to be merely hypo^ 
dietical, and predicated on the supposition of the truth of ge- 
neral Eaton's testimony, and those other publications: but 
that he would as easily divest his mind of prejudice as any 
other man; and that, on the exhibition of other testimony, he 
mi^t change his opinion. 

Mr. WiCKHAH and Mr. Randolph delivered their opi- 
nions as to the impropriety of the doctor- serving as a grand, 
juror. And 

Mr. Hat insisted, that he was a proper juror; that there 
was not a man in the United States, who probably had not 
formed an opinion on the subject : and if such objections as 
these were to prevail, Mr. Burr might as well be acquitted at 
once. 

Mr. Burr.— This gendeman has said, that from the evi- 
dence he has already seen, he has made up his mind ; but 
that, on hearing other testimony, he may change it. But as 
a grand juror, he will only hear testimony on one side. The 
evidence which will be laid before the grand jury, will be alto- 
gether on the part of the United States, and ex parte ; and no 
testimony to remove the impressions, which he has already 
imbibed, will be offered. There will be an accumulation of 
evidence on the same side to increase the bias already on his 
min<l, and nothing on the other to counteract it. I hope there^ 
fore the court will suffer him to withdraw. 

Dr. FousHEE. — I have stated what other gendemen have 
done : that if the testimony I have seen be true, and nothing 
brought to counteract it, my impression will of course remain 
mchanged* Ji ask, if others are not excused, why this discri- 



46 

mination against me I However indisposed I may be to senre, 
I shall not withdraw but by the direction of the court* 

After some observauons by Messrs. Wickham, Randolph 
and Hay, the chief justice observed, that the difference seem- 
ed to be, that Dr. Foushee had made im an opinion both as to 
\aw and fact; whereas other gentlemen nad formed an opinion 
only as to certain facts. Consequendy Dr. Foushee was per* 
ihitted to withdraw. 

Colonel James Barbour being next called, excepted to 
himself on a principle in some degree similar to that on which 
Dr. Foushee claimed to be excused: that of being impressed 
with sentiments unfavourable to colonel Burr. But his excuse 
was deemed insufficient by the court. 

The grand jury were tbea sworn, and were as follows: 
John Rand^h, junior, foreman. 

Joseph Eggleston, John Mercer, 

{oseph C. Cabell, Edward Pegram, 

.ittleton W. Tazewell, Munlwd Beverly, 

Robert Taylor, John Ambler, 

James Pleasants, Thomas Harrison, 

John brockenbrough, Alexander Shephard, 
William Daniel, and 

James M. Gamett, James Barbour. 

The CHIEF JUSTICE then delivered an appropriate charge to 
the grand jury, in which he particularly dwelt upon the defiai« 
tion and nature of treason, and the testimony requisite U> 
prove it. After which they retired. 

Colonel Burr then addresse^the court, and stated his wish, 
that the court should instruct the grand jury on certain leading 
points, as to the admissibility of certain evidence which he 
supposed would be laid before the grand jury by the attorney 
for the United States. 

Mr. Hat hoped, that the court would proceed as they had 
always done before, and that they would not grant particular 
indulgences to colonel Burr, who stood on the same footing 
with every other man charged with a crime. That they had 
already charged the jury on certain material principles, and he 
trusted that the court would not depart from established rules, 
or adopt a new precedent, to oblige the accused. 

Mr. BuRR.-^Would to God that I did stand on the same 
ground with every other man. This is the first time I have 
ever been permitted to enjoy the rights of a citizen. Hcyve 
have I been bniught hither? 



47 

The eHX£F justice said it was improper to go into these d i- 
iressions. 

Mr. Burr said, that the attorney for the United States had 
mistaken his meaning, if he supposed that he wished to be 
considered as standing there on a different footing from other 
citizens; that he viewed himself as only entitled to the same 
privileges and rights which belonged to every other citizen ; 
that how much soever be may have disapproved of certain 
jnrinciples laid down by the supreme court in their late deci- 
sions, he should not at preseitf insist on his objections to them; 
that there were many points on which the best informed juxy- 
men might be ignorant, or entertaun doubts. All he wished 
the court to do now was, to instruct the jury on certain points 
relating to the testimony ; for uistance, as to the article of 
papers. 

Mr. Hat pledged himself that no attempt should be made 
to send up any testimony to the juty without the knowledge of 
die court- 
Mr. Randolph observed, that it was not on particular parts, 
but on certain principles of testimony, that he wished instruc- 
tions from the court to the jury: for instance, to instruct them 
how many witnesses were necessary to satisfy them that ^an 
overt act was committed ; how far facts committed in different 
dbtricts, should be suffered to bear upon a single act committed 
in one district; how far factjs done in one district, .ought to be 
admitted as evidence to confirm the commission of other facts 
in another district; and what in short was proper evidence to 
be laid before them*' 

Mr* Hat objected to this proceeding as extraordinary; that 
Ae opposite counsel would require from the court a disserta- 
tion on the whole criminal law, upon every point which might 
possibly occur; that the jury were the proper judges, and if 
diey had doubts let them apply to the court for instructions. 

Mr. WicKHAM observed, that this was not an ordinary case 
as had been said; that the man who thought so must have shut 
his eyes against the host of prejudices raised against his client; 
diat the attorney for the United States had said, that there was 
no man who had not fornKd an opinion on it; that he did not 
require a dissertation on criminal law in general, but merely 
that the court would instruct the jury on certain points of law 
and evidence; that the necessity of instructing arose from the 
peculiarity of this case ; that there might be witnesses from dif- 
ferent parts of the United States, who would state facts not 
connected with colonel Burr; that there were witnesses to show 
what was done in the western country when he was hundreds 



48 

6f miles distant ; that the jury ott|;ht to know from llie c6urt 
how much of this vast mass of testimony ought to have a legal 
application. 

Mr. Hat inforced his former objection, that if the law was 
to be laid down by the court, they would certainly wish to have 
it explained by both sides; that the gentlemen on the other side 
wished the court to decide without argument, on matters the 
most important; that as the jury were very intelligent, and the 
court had already given a general definition of principles, the 
correct course was to proceed in the usual way, without wasting 
time in unnecessary argument. 

Mr. BoTTs said, that in a case of such unexampled impor- 
tance, which was sufficiently attested by the busy crowd around 
them, the noise in the country, the curiosity of the people, and 
the activity of the government, no reasonable objection could 
be made to even wasting a few minutes ; that it was a case 
where the prisoner required, and ought to receive, tfie benefit 
•f every legal right which the court could furnish. 

Chief Justice observed, that there would certainly be a diffi- 
culty in the court's giving dissertations on criminal or penal 
laws; that he was not prepared at present to say, whether the 
same evidence was necessary before the grand jury as before 
the petit jury; whether two witnesses to an overt act were re- 
quired to satisfy a grand jury: this was a point which he would 
have to consider. That he had not made up his mind on the 
evidence of facts said to be done in diifertnt districts, how far 
the one could be adduced as evidence in proof or confirmation 
of the other; but his present impression Was, that facts doiie 
without the district, may be brought in to prove the material 
fact said to be done withtn the district, when that fact was 
charged. 

The question was postponed for further discussion, on Mr. 
Hay pledging himself, that no evidence should be laid before 
the grand jury, without notice being first given to colonel Burr 
and his counsel. 

Several witnesses on behalf of the United States were called 
and recognised to appear to-mori^ow, at eleven o'clock A. M» 

The court adjourned till then. 

Saturday, 23d May, 1807. 

Present the same Judges as on yesterday. 

The proceedings of yesterday'being read, and the names of 
the jury called over, several witnesses on the part of the United 
States appeared and were recognised to attend on the court. 



J 



49 

The counsel for colonel Burr observed, that if it met the ap- 
probation of the courts the discussion on the propriety of giv- 
ing special instructions to the grand jury would take place on 
Mbnday next. 

This proposition was assented to, and it was understood that 
Mr. Burr's counsel were to give due notice of the propositions 
they intended to submit* 

The grand jury appearing pursuant to adjournment, the chief 
justice informed them, that the absence of general Wilkinson^ 
a witness deemed important by the counsel for the United 
States, and the uncertainty of his arrival at any particular pe- 
riod, made it necessary that they should be adjourned. 

Some conversation ensued between the court and bar, with 
respect to the propriety of adjourning the grand jury to some 
future day in the term* 

The CHIEF JUSTICE stated it as his opinion, that as thef e was 
no necessity for calling over the names of the grand jury every 
day, they might be considered in contemplation of law, still in 
their chambers till they were called into court, and it might be 
understood that they would not be called till some particular 
day. This he said was the practice in some of the states, nor 
did he know any sound objection to it: but unless it was con- 
sidered by counsel on bodi sides, that this course was free 
from all exception^ he should be unwilling on any account to 
adcmtiu 

The counsel for colonel Burr stated that they knew no ob« 
jection to the measure, but were unwilling to express any 
decided opinion, Especially as colonel Burr was not then in 
court. 

The chief justice said^ that he felt much inclined to accom- 
modate the grand jury; but until further consideration of the* 
subject, they would stand adjourned till Monday following* 

The court adjourned till then accordingly* 

Monday, 25th May, 1807. 

The court met according to adjournment: present the same 
judges as on Saturday. 

The grand jury appeared in court, and on its being stated by 
their foreman, that they had been two days confined to their 
chambers, and had no presentment to make or bill before them, 
Mr* Hay observed, that he had two bills prepared, but wished 
to postpone the delivery of them till the witnesses were present^ 
sod it was ascertained that all the evidence relied on by the 
counsel for the prosecution could be had* He thought it pro- 
bdUe, that in the course of a week, he should hear of general 

Vot. I* G 



50 

Wilkinsoni who was Btill absent, and whose testimony was 
deemed very important* 

A further conversation took place, as to the propriety of ad- 
journing the grand jury to a distant day of the term> and Mon- 
day next was mentioned, as the time when they would probably 
be required to attend. 

The Chief Justice observed, that from the researches which 
he had been Mt to make, he was still inclined to favour the 
opinion which he had expressed on Saturday, that there was 
no necessity for calling the grand jury every day. This opi- 
nion was the result of nis reflection upon principle, not formed 
from any positive authority on the subject* 

Mr. Wjc^HAM having stated, that as a number of witnesses 
were attending at a considerable distance, on the part of co- 
lonel Burr, it might be important to know when the grand jury 
would be again called. 

Mr* Hay observed, that a motion might be made, which 
would render their presence necessary, even on that day* 

Mr* WicjCHAM then requested, that before any order should 
be taken in relation to the adjournment of the grand jury, the 
counsel for the United States might state the nature and object 
of Jiis motion* 

Mr. Hay. — The object of my motion is to commit Mr. Burr 
on a charge of high treason against the United States* On his 
examination there was no evidence of an overt act, and he 
was committed for a misdemeanor only. The evidence is dif- 
ferent now* 

Mr. Wickham hoped, that the application might be made 
and counsel heard. 

Mr. Hay. — Gentlemen maybe assured that they will be ap- 
prised of the application ; but is it their wish that it should be 
made, and the subject discussed in presence of the grand jury? 

Colonel Burr. — The gentleman has mistaken the object of 
my counsel as far as it is comprehended in my motion* The de- 
sign wa$ not that the grand jury might hear, but that the im- 
propriety of mentioning the subject in the presence of the 
grand jury, might be made more manifest* I think it may be 
demonstrated, that while there is a grand jury attending, before 
whom a question may be determined, there is an obvious im- 
propriety in submitting it to any other tribunal for any other 
purpoi»c* 

The grand jury were requested to withdraw* 



51 

Mr. Hay renewed his application, stating more at large the 
grounds on which it was made ; and moved the court to commit 
yir. Burr on a charge of high treason against the United States, 
on the evidence forknerly introduced, and on additional testis 
mony to be now brought forward. 

Mr. WiGKHAM inquired what sort of evidence was intended 
to be introduced : whether that of witnesses to be examined 
viva hoccy or affidavits in writing? Mn Hay answered, that 
where the witnesses were present he intended to examine them 
viva' voce; but where they were absent to make use of their affi- 
davits regularly taken and certified. 

Mr. BoTTs. — ^We may have cause of much regret, that the 
attorney of the United States, has not given us some previous 
notice of this application. From the engagements between the 
prosecuting and defending counsel, to interchange information 
of the points intended to be discussed, we had a right to expect, 
that upon a subject like this, involving questions new and impor* 
tant, we should not have been taken by surprize. Indeed, from 
the common courtesy and candour of the attorney of the United 
States, we might have reasonably calculated on a previous com* 
municadon. This interchange of civility and information, usual 
even in cases of inferior importance, was more necessary in this 
case, because the application is as unfortified by precedentas it 
is unexpected ; and because it involves questions of deep con« 
sideration and weighty importance. 

Mr. Hay interrupted Mr. Botts.— -Since the gentleman com- 
plains of being taken by surprize, I am willing to postpone the 
motion till to-morrow. 

Mr. BoTTS. — Not a moment's postponement. Although we 

sustain considerable inconvenience by being thus suddenly and 

unexpectedly called upon without reflection, or authorities, yet 

we should experience greater by a day's delay. I shall there* 

fore beg leave to make a few remarks on this extraordinary 

application, and the pernicious effects such an extraordinary 

measure, if generally practised, would inevitably produce. 

The organ particularly appropriated for the consideration of 

the evidence which this motion calls for, is the grand jury ; and 

the motion is to divest the grand jury of the office, which the 

oonatitution and laws have appropriated to them, and to devolve 

it upon the court. The grand juror's oath is to inquire into all 

crimes and misdemeanors committed within the district of the 

state of which they are freeholders. Their office is to perform 

that which the court is now called upon to perform. To them 

belongs the exclusive duty of inquiring and examining into alt 

^cics of evidence, which may lead to a conviction of the crime 



52 

of which colonel Borr is now charged ;' but there is a great oiv 
jection to the exercise of this examining and committtng 
power by a high law officer, who is to preside upon the trial, 
when the grand jury, the appropriate tribunal, is in session. He 
is obliged, previously, without a full hearing of both sides of thfe 
case, to commit himself, upon the case of the accused. Every 
one will agree, that a judge, should, if possible, come to the 
' office of trial as free from prepossession, as if he never heard 
of the case before. It is true, that when a grand jury isnotem* 
bodied, in order to avoid a failure of justice, and to prevent the 
guilty from escaping, the measure which the gentleman now 
proposes, would not only he proper but necessary. The exami* 
ning and committing office ot the judge is, in such cases, jus- 
tified by the necessity of the case ; but then it is because the ap- 
propriate body of inquest is not. impaneled to perform the 
office. The necessity does not ei^ist here. This novel mode of 
proceeding would give the attorney for the United States the 
chance of procuring an opinion from the court, unfavourable to 
the accused. Failing in that chance, he would then resort to 
his only legal one— before the grand jury. Why should this 
court step out of its ordinary course to forestal or influence the 
deliberations of the grand jury and the public? The motion 
is without precedent, or reason to warrant such a precedent; it 
is oppressive and against all principle; it is unreasonable and 
oppressive that the functions of the grand jury should be sus- 
pended, in order that the court should assume them. Although 
in the absence of the grand jury, it would be proper in the court 
to determine a question of commitment, yet the history of our 
criminal jurisprudence yields no instance of such a motion du- 
ring the session of the grand jury. I did expect, that some so- 
litary reason would have been given, by the gendeman for the 
prosecution, in support of his motion; I did expect, sir, that all 
the books oJF England would have been ransacked ; I did sup- 

Kose, sir, that the musty pages of folios and quartos would 
ave been opened to support his argument ; I did expect, at 
least, sir, that one case of state practice would have been produ- 
ced. In this expectation I am disappointed. I say then, sir, 
that the motion before the court is without precedent, unreason* 
able in its nature, inconvenient in its effects, and oppressive in 
its end; of apiece with the long course of oppression which has 
been practised against colonel Burr, but has been hitherto un- 
known in this country; unheard of in any country which enjoys 
the blessings of freedom, and which, I trust, will never again be 
repeated in these states* 

Colonel Burr appears in this court ready to go on with his 
trial ; he wishes no delay ; he is opposed to every measure which 
may occasion delay, or procrastinate the business. His great 



53 

object is to satisfy Ilia country, the minds of his fellow ciuzens^ 
and even his prosecutors, that he is innocent* We have su£fered 
already two or three days to pass away in idle discussion, or 
without doing any thing; and yet we are told, at last, after the 
lapse of several months ; after a grand jury have been convened 
and gone into their room; after attending with great inconve- 
nience to themselves and expense to the state; zSttvaUthis^ we 
are told, that the business of commitment is again to be gone 
over; that the evidence which ought to be given to the grand 
jury, the only proper tribunal at thb time for its consideration, 
is to be submitted to the court. We have, sir, made enough of 
sftcrifices; we have been deprived of our legal rights; our per-^ 
son and papers have been seized ; we have been subjected to a 
military persecution unparalleled in this country ; given into the 
custody of the satellites of military despotism, and guarded by 
the rigid forms of military law: surely our wrongs ought now 
to end. It was rumoured that he would not appear; but he has 
sheared* We come to ask a legal trial: an examination into 
me charges which have been preferred against us. The govern* 
ment has had the time and necessary means of preparation, and 
they ou^t to be prepared. Our pleasure was, to await the plea- 
sure of the prosecution, unless that pleasure should be found to 
be oppressive. But we are told now, that the indictment cannot 
go up; but in the mean time an inquisition must be held. Per- 
mit me to advert, for a solitary moment, to one circumstance : 
If we had sought every legal advantage, our motion would have 
preceded theirs; our motion would have been, that, if they 
were not ready to present their evidence before the grand jury^ 
colonel Burr should be discharged from the recognisance alrea- 
dy given. 

The laws of congress have adopted our rules and practice in 
the states, in proceedings upon indictments for misdemeanors. 
You were of opinion, you well remember, sir, that nothing more 
than probable cause of suspecting a misdemeanor appeared 
against colonel Burr. Even after an indictment in Virginia for 
a misdemeanor, nothing more than a summons can go against 
the person indicted. No court, in the commonwealth, ever per- 
mitted a capias to go in the first instance, unless the case passed 
Mub silcntio* Now arrest and bail are utterly incompatible with 
a summons ; and surely, if an indictee cannot be arreted, one 
merely suspected, cannot be held to bail. The conduct of judge 
Chase, in awarding a capias against Callender, was the subject 
of one of the charges in his impeachment. Mr. Hay, vehement- 
ly and ably contended, that a summons only ought to have issu- 
ed against him. 

I know that the court may have an impression that I am 
wandering from the subject.' I will soon show what applica* 



54 

tion the recognisance already taken has to the motion to exa* 
mine witnesses, in order to commit for treason. . 

Notwithstttiding colonel Burr, was committed upon a charge 
of misdemeanor, when according to the state laws he wotJd 
not have been committed, a public prejudice has been excited 
against the lenity of the measure; and attempts have been made^ 
through newspapers and a popular clamour, to intimidate every 
officer who might have any concern in the trial. This public 
prejudice would be increased by the present motion rather than 
allayed, if the necessary explanation should not be made* The 
multitude around us must hear what is passing, and we cannot 
submit to a course which would further invest the public mind 
with the poison already too plentifully infused. I do not charge 
the attorney of the United States with a design to excite or in* 
crease this public prejudice ; but Iknowit willbe increased,unless 
care be taken to show, that the public clamour has been ground* 
less. I take it for granted, that after this view of the subject, 
whatever motive dictated the application, it will now be aban* 
doned, and that the gentleman will withdraw his motion. I will 
not weary out the patience of the court, but conclude by sa)ring, 
that I sit down in anxious hope, that the success of this motion 
may not add to flie catalogue of colonel Burr's grievances. 

The chief justice inquired whether the counsel for the pro- 
secutioil intended to open the case more fully? 

Mr. Hay had not intended to open it more fully ; he did not 
himself entertain the least doubt, that if there was sufficient proof 
produced to justify the commitment of colonel Burr, the court 
had completely the right to commit him. That the general power 
of the court to commit, could not be questioned ; and if gentle* 
men contended, that it ought not to be exercised in the present 
case, it was incumbent on them to show it. That Mr. Botts him- 
self had not denied it. That his whole argument turned on the 
question, not whether the court had the right, but whether it 
was expedient now to exercise it. Its expediency depended on 
the evidence ; if that was sufficient, there could be no doubt of 
the power. That if the court once admitted, as an exception to 
this principle, that the grand jury was in session, they would 
establish a precedent fraught with the most injurious conse* 
quences^ 

Mr. WicKHAM. — It certainly would have been an accommoda^ 
tion to\is, if the gentlemen had given us notice of their intended 
motion. We come into this discussion completely off our guards 
completely unprepared ; and it may be presumed, that it was 
merely an omission in the opposite counsel, not to have given us 
notice of the motion which they intended to bring forward. 
Because it wasgdistincdy understood between us, (by an argu^ 



55 

ment made, I believe, in the hearing of the court), that if any 
specific motion was to be made on either side, timely notice of 
its nature and object ivas to be given. I am sorry that they have 
departed from their agreement in the present instance; but if I 
have not forgotten every principle of law which I ever learnt, 
of every principle of common jusUce, this motion cannot be sup* 
ported. 

Mr. Hay.— -The gentleman will permit me to set him right. 
He might have relied on my candour, that when I was about to 
lay my indictments before the grand jury, I would have given 
him timely notice of my intention. They might then have mov« 
ed for the instruction to the jury, which they are so anxious to 
obtain. This was the only understanding between us on the sub- 
ject; our agreement extended no further; much less to the par- 
ticular case before the court. On the other hand, there was a 
very strong reason against our making this communication. I 
feel no hesitation, sir, in assigning this reason: and I hope that 
it will wound neither the feelings of the prisoner, nor of his 
counsel. I did not intend to have laid it belore the court, but I 
now conceive myself called upon to be thus explicit. The fact 
is this. Mr. Wilkinson is known to be a material witness in 
this prosecution; his arrival in Virginia, might be announced in 
this city, before he himself reached it. I do not pretend to say 
what effect it might produce upon colonel Burr's mind; but cer- 
tainly colonel Burr would be able to effect his escape, merely 
upon paying the recognisance of bis present bail. My only d>- 
jea then was to keep his person safe, until we could have inves- 
tigated the charge of treason; and I really did not know, but 
that if colonel Burr had been previously apprised of my motion, 
he mig^t have attempted to avoid it. But I did not promise to 
make this communication to the opposite counsel, because it 
might have defeated the very end for which it was intended. I 
have said, that the only pledge I gave, merely related to the in- 
dictments to be sent up to the grand jury. 

Mr. WiCKHAM observed, that after this explanation, he must 
suppose, that he had misapprehended the extent of their agree- 
ment* He knew the gentleman too well to think that he •had 
intentionally misled him; but what could he think of the motion 
he bad made? It was a strange episode which he weaved into 
Us tale; it may be good poetry indeed, but it was not certainly 
proper matter of argument. Every man who hears me, every 
who has ever read on the subject, must know, what are the 
which dictate these suspicions of colonel Burr. Some 
aaortification was felt by his enemies, (not that the attorney for 
die United States himself ever felt it), that he returned here for 
iviaL But here colonel Burr hj and always will be ready to 



56 

meet every charge they may think proper to bring agaiinst him r 
and to face every man who dares to say any thing against him. 
The gentleman will not open his case, and why i Because when 
he has heard our arguments against his .motion, be may come 
out with the adverse arguments against us. If they do not choose 
to open their case, we hope the court will grant us the right of 
concluding the argument. 

Here a desultory conversation ensued upon the order of pro- 
ceeding. 

Mr. Edmund Randolph observed, that the power of th^ 
coui^ to commit, was not denied ; but that the expediency of 
committing, while a grand jury was in session, was denied; that 
it was improper that an inquiry which belonged exclusively to 
that body, should be transferred to the court. 

Mr. Hay said, that it made no difference in law, whether the 
grand jury were in session or not; that the grand jury being in 
session could not deprive the court of the power with which they 
were vested. Let me state a case, said Mr. Hay. Suppose colonel 
Burr had only arrived at Richmond this morning, instead of 
having been brought at the period of his first examination, 
would his counsel contend, that the court would not think it pro- 
per to commit him, instead of bringing the question immedi^. 
ly before the grand jury, when the prosecutor was not furnished 
with the necessary evidence? This is precisely the case at pre- 
sent. From additional evidence, which has come into my pos- 
session since his examination, . it applsars to me, that upon s|. 
disclosure of it to the court, they will see proper that he should 
be committed on the charge of treason; but to complete this 
' evidence sdll more, the testimony of general Wilkinson is es- 
sential ; and until his arrival, it would be improper to submit it to 
the grand jury; although it is necessary, for the reasons I have 
stated, that it should be submitted at present to the court 

Mr. WicKHAM meant to support his arguments on the 
grounds of law and precedent: he read the revised code of Vir* 
ginia, page 103, sect 10. which he contended were plainly in his 
favour. He observed, that the present motion was unprecedent- 
ed in a system of criminal jurisprudence, which was upwards of 
one hundred years old. If this motion be a proper one, there 
must be some precedents in this country or in England. If there 
. be none such their motion cannot be supported; and as the geiw 
tlemen have not produced them, it is fair to infer, that there are 
none such* It is therefore obvious that the present motion is con- 
trary to the acts of Virginia, as well as to the common law* 
The attorney for the United States says, that he can take no 
final measures, till general Wilkinson is present His deposition 



57 

-is greatly relied upon. Now^ sir, .1 r efe^ to yoii as well as to the 
supreme court of the United States, where you presided, that the 
facts contained in that deposition did not amount to treason, 
but to a probable proof of a misdemeanor only.' As to general 
Eaton's, it is not relied on ; the sole felian(;e of the prosecution 
is on Wilkinson's: of course, if Wilkinson himself were present, 
he would prove nothing new. But if general Wilkinson be so ma- 
terial a witness, why are they not prepared td go with him before 
die grand jury? Why is he not here? He is a* military officer^ 
bound implicitly to obey the head of the government; In the 
war of Europe, a general has been known to march the same 
distance at the headof his army, in-a shorter Ume than general 
Wilkinson has had to pass from N^w-Orleane to this place. He 
15 bound to go wherever the government directs him: to march 
to Mexico; to invade the Floridas; or to come to this city. Per- 
haps there are other reasons for his not coming: but let us not 
press this subject. 

What, sir, is the tendency of this application ? What is the mo- 
tive? I have no doubt, the gendemen mean to act correctly. I wish 
to cast no imputation; but the counsel and the court well know, 
that there are a set of busy people, (not I hope employed by the 
govemmeiit) who, thinking tordo right, are labouring to ruin the 
reputation of my Client. I do not charge the government with 
diis attempt; but the thing . is actually done. Attempts have 
been made.' The press, from one end of the continent to the 
other, has becm enlisted on their side to excite prejudices against 
colonel Burr. (Prejudices? Yes, they have influenced the public 
opinion by such representations, and by persons not passing be- 
tween the prisoner and his country, but by ex parte evidence 
and mutilated statements. Ought not this court to bar the door, 
as much as possible, against such misrepresentations ? to shut 
out every effort to excite further prejudices, until the case is de» 
cided by a sworn jury? not by the floating rumours of the day, 
but by the evidence of sworn witnesses ? The attorney for the 
United States offers to produce his testimony: no doubt, the 
most violent; no doubt, the least impartial which he can select: 
testimony, which is, perhaps, to be met and overthrown by su- 
perior evidence. Qo they, besides, wish that the multitude- 
around us should be prejudiced by garbled evidences? Da 
precedents justify such a course as this ? Produce your witnesses, 
they may say. N(3, sir, colonel Burr is ready for a trial; but he 
wishe;s that trial to come before a jury. I do not preten.d to 
understand the motives which led to those things : it is enough, 
that they produce these mischievous effects upon ourselves. 
Should government, hereafter, wish to oppress any individual; 
to drag him from one end of the country to the other by a mili- 
force ; to onlist the prejudices of the country against him; 
Vol. I. H 



1 



58 

« 

they will pursue the very same course which has now been t»* 
ken against colonel Burr. Hflwis here, ready for triaL They 
admit that their testimony is not sufficient to bring him before 
a grand jury, and of course, to find an indictment against him.' 
"Why then is this partial evidence to be exhibited on a motion 
for commitment? It is to nourish and keep alive the prejudices 
already circulated against him. Will they then, press a motion 
like this? Be it so. I hope the motion wiU be rejected, and that 
the court will stand between the innocent and his pursuers: for 
every man is presumed to be innocent, before he is found 
guilty. 

Mr. Wirt. — May it please your honours. 

The attorney for the United States, believing himself possess- 
ed of sufficient testimony to justify the commitment of Aaron 
Burr for high treason, has moved the court to that eifect* In 
making this motion, he has merely done hi^ duty. It would 
have been unpardonable in him to omit it; yet the counsel for 
the defence complain o( the motion and the want of notice* 
As to the latter objection, it must be palpable, that the nature 
and object of the motion rendered notice improper. The gen« 
tlemen would have the attorney to announce to the party accu- 
sed, that he was, at length, in possession of sufficient evidence 
to justify his commitment for high treason; and, that being ap« 
prehensive he might not be disposed to stand this charge, he in« 
tended, as soon as the accused came into court next morning, 
to move his commitment ! This- would really be carrying po- 
liteness beyond its ordinary pitch. It would not have deserved 
the name of candour, sir ; it would, in fact, have been an invi- 
tation to the accused to make his escape* But, as gentlemen 
seem to doubt, at least with an air of some earnestness, the pro« 
priety of this motion at this time, and express their regret that 
they have not had time to examine its legality, the attorney 
has offered to waive the motion until tomorrow, to give gentle- 
men the opportunity which they profess to desire; but no, sir, 
they will not even have what they say they want, when offered 
by the 'attorney. Another gentleman, after having demanded 
why this motion was made, and by that demand drawn from the 
attorney an explanation of his motives, has been pleased to 
speak of the attorney's statement, of his apprehensions, as an 
episode, which "though good poetry," he says, "had better 
have been let alone, when such serious matters of fact were in 
discussion.*' It may be an episode, sir: if the gentleman plea- 
ses, he is at liberty to consider the whole trial as a peice of 
Gpic action, and to look forward to the appropriate catastrophe* 
But it does not appear to me to be very fairs sir, after Jiaving: 
drawn from the attorney an explanation of hisn\otives,to com- 






59 

fklain of that explanation : if a woutid has been inflicted by 
the explanation, the gentlemen who produced it, should blame 
bfily themselves. But, sir, where is the crime of consider- 
ing Aaron Burr as subject to the ordinary operation of the 
human passions? Towards any odier man, it seems, the attor- 
ney would have been justifiable in using precautions against 
alarms and escapes : it is only improper when applied to this 
man. Really, sir, I recollect nothing in the history of his de- 
portment, which renders it so very incredible, that Aaron Burr 
would fly from a prosecution* But at all events, the attorney is 
bound to act on general principles, and to take care that justice 
be had against every person accused, by whatever name he may 
be called, or by whatever previous reputation he may be distin- 
guished. This motion, however, it seems, is not legal,- at this 
time, because there Is a grand jury in session. The amount of 
the position is, that though it may be generally true, that the 
court possesses the power to hear and commit, yet, if there be 
a grand jury, this power of the court is suspended ; and the 
commitment cannot be had unless in tonstquence of a present- 
ment or bill of indictment found by that body. The general 
power of the court being admitted, those who rely on this ex- 
ception, should support it by authority; and therefore, the loud 
4Uiil for precedents, which we have heard from the other side, 
comes improperly from that quarter. We ground this motion 
in the general power of the court to commit: let those who say 
that this general power is destroyed by the presence of a grand 
jury, show one precedent to countenance this original and ex- 
traordinar}' motion. I believe, sir, I may safely affirm, that not 
a single reported case or dictum can be found, which has the 
most distant bearing towards such an idea. Sir, no such dictum 
or case ought to exist. It would be unreasonable and destruc- 
tive of the principles of justice: for if the doctrine be true at all, 
that the presence of a grand jury suspends the power to hear 
and commit by any other authority, it must be uniformly and 
universally true in every other case as well as this, and in 
every case which can be proposed while a grand jury is sitting. 
Now, sir, let us suppose, that immediately on the swearing of 
diis grand jury, and their retiring to their chamber, Aaron Bun- 
had for the first time been brought to this town; the members 
of the evidence scattered over the continent; the attorney, how- 
ever, in possession of enough to justify the arrest and commit- 
ment of the accused for high treason, but not enough to autho- 
rise a grand jury to find a true bill. What is to be cfonef The 
rourt disclaims any power to hear and commit, because there is 
a grand jury ; the grand jury cannot find a true bill, because the 
c^dente is not sufficient to warrant such a finding: the natural 
and unavoidable consequence would be, that the man must be 



i 



6d ' 

discharged: and then, according to Mr. Wickham's principles 
of ethics, that every man must be supposed to iiltend the na^ 
tural consequences of his own acts, the gentlemen who advo- 
cate this doctrine intend, that Aaron Burr shall be discharged 
without a trij^l. 

I beg you, sir, to recollect what was said by gentlelhea 
the othtr day, when you were called upon to give an additioTnal 
charge to the grand jury. You were told that a grand jury should, 
require the same evidence to find a true bill, which a petty 
jury would teqUire tb convict the prisoner* Connect this 
principle with the doctrine in question: the sitting ;of the grand 
jury suspends all power to commit by any othejf body, and the 
grand jury cannot find a true bill, unless on evidence on which 
they would convict as a petit jury: connect these two principles, 
and consider the immaturity of evidence, which always exists at 
the period of arrest an4 commitment : and the sitting of the grand 
jury, instead of being a season of admonition and alarm, be- 
comesa perfect jubilee to. the guilty, fiut it is said, that this is 
^* an attempt to, divest the constitutional organ of its just and 
proper power." I believe, sir, it wa^ never before heard, that 
an application to (Coprmyt for safe keeping, was an encroachment 
on the power of the grand jury. Would the gentlemen have us 
to address this motion to the grand jury? they might as well 
propose, that we should submit the bill. of indictment to the 
court, and desire them to say, whether it is a true bill or not? 
This would be indeed, the "shifting of p<>wers,'' of which the 
gentleman complains. As it is, sir, there.is no manner (^ col« 
lision between the power, which we call upon, the court to 
exercise, and the proper power of the grand- jury. The justices 
arrest and commit, for safe keeping; then comes the function 
of the grand jury, to decide on the truth of the indictment ex* 
hibited against the prisoner. The two offices are distinct in 
point of time, and totally different in their nature and objects. 
But it is said, that "there is a great inconvenience in submit- 
ting a great law officer to the necessity of expressing an opinion 
on the crime, on a motion like this — that the judge like the juror, 
should come to the trial with his mind pure and unbiassed." 
This argument does not apply to the legality of the power, 
which we call upon the court to exercise; it goes merely to the 
expediency of exercising it: and if the argument be true, the 
court ought never to commit, whether the grand jury be sitting 
or not. This, however, sir, is a matter for legislative^ not for 
judicial consideration. Whenever the legislature shall decide,, 
by the force of this argument, that the court which commits 
^hall not sit on the trial in chief, a motion like this will become 
improper. At present, however, the legislature has left this 



3 



61 

power with'the court, and we claim its exercise for considera- 
tions of the most serious importance to truth and justice. 

But, sir, we are told, that this investigation is calculated to 
keep alive the public prejudices; and we hear great complaints 
about these public prejudices* The country is represented as 
being; filled with misrepresenitatiocis and calumnies against 
Aaron Burr; the public indignation it is. said, is already suf* 
ficiently excited. Thia argument is also inapplicable to our 
right to make this motion; it does not affect the legality of our 
procedure. But if the moUon is likely to have this effect, we 
cannot help it« No human institution is free from inconveni- 
ences; the course we hold is a legal one, -a necessary one : we ' 
think it a duty. It is no answer to us- to say,, that it may pro- 
duce inconveniences to the . prisoner. But let us consider this 
mournful talc of prejudices, and the likelihood of their toeing 
excited by this motion. - Sir, if Aaron Burr be innocent, instead 
of resisting this motion^ he ought to hail it with triumph and 
exultation. What is it that we propose to. introduce ? not the 
ramours that are floating through the world, nor the bulk of 
the multitude, nor the spectdations of newspapers; but the 
evidence offaet0* We propose, that 'the< whole evidence excul- 
patory as well as accusative, shall come before you; instead of 
excitifig, this is the true mode of correcting. prejudices. The 
world, which it is said has been misled and inflamed by false- 
hood, will now hear the truth. Let the truth come out, let us 
know how Tnxxch. oi what we haye.h^ard is false, how much of 
it is true ; how much of what we feel us prejudice, how much 
of it is justified by fact. Whoever before heard of siich an ap- 
prehension as that which is^ professed on the other sidef pre^ 
judice excited by evidence! Evidence, sir, is the great corrector 
of prejudice. Why then does Aaron Burr shrink from it? It is 
strange to me that a man, who complains so much of being, 
without cause, illegally seized and transported by a military- 
officer, should be afraid to confront this evidence: evidence 
can be promotive only of truth. I repeat it then sir, why does 
he shrink from the evidence ? The gentlemen on the other side 
can give tfie answer. On our part, we are ready to produce 
diat cvideiice. Permit me now, sir, to turn to the act of as- 
sembly which has been read by Mr. Wickham. Into what em- 
barrassoient must the itigenious and vigorous mind of that 
gentleman have been driven, before he would have taken re- 
fuge under this act of assembly? It is but to read it to see that 
It has no manner of application whatever to this motion; that 
it applies to the case of a person already committed; declaring 
that such person shall be bailed, if not indicted at the first term 
after his commitment, and discharged if not indicted at the se- 
cond tcrm# Revised code, page 10.3. sec. 10. It begins thua^ 



« 



e2 

** When any person committed for tretson.'^ — Now, sir, it 
Aaron Burr committed for treason i. If not, it is obvious that the 
clause has no manner of application to him. Why, sir, the ob- 
ject of this motion is to commit him; gendenlen must have 
been in strange confusion when they resorted to this law. Mr. 
Wickham asks, if general Wilkinson be a material witness, why 
he is not heref Who is general Wilkinson? says that gentleman. 
Is he not the instrument of the government, bound to a blind 
obedience? I am sorry for this and many other declamatory 
remarks which have been unnecessarily and improperly intro- 
duced; but the gendeman assures us, that no imputation i« 
meant against the government. Oh no, sir; colonel Burr indeed 
has been oppressed, has been persecuted; but far be it from the 
gentleman to charge the government with it. Colonel Burr in- 
deed has been harassed by a military tyrant, who is *^ the in- 
strument of the government bound to a blind obedience;" but 
the gendeman could not by any means be understood as in« 
tending to insinuate aught to the prejudice of the government* 
4 The gentleman is understood, sir; his object is correctly under- 

stood. He would divert the public attention from Aaron Burr, 
and point it to another quarter. He would, too, if he could, shift 
the popular displeasure which be has spoken of, from Aaroa 
Burr to another quaiter. These remarks were not intended for 
'* yx>ur ear, sir; they were intended for the people who surround 

« tis; they can have no effect upon the mind of the court. I am 

too well acquainted with the dignity, the firmness, the illumi- 
nation of this bench, to apprehend any such consequence. But 
the gentlemen would balance the account of popular preju- 
dices; tfaey would convert this judicial inquiry into a political 
question; they would make it a question between Thomas 
Jefferson and Aaron Burr. The purpose is well understood, 
sir; but it shall not be served. I will not degrade the admini- 
stration of this country by entering on their defence. Besides, 
sir, this is not our business ; at present we have an account to 
settle, not between Aaron Burr and Thomas Jefferson, but be* 
tween Aaron Burr and the laws of his country. Let us finish 
his trial first. The administration too will be tried before their 
country; before the world. They, sir, I believe, will never 
shrink, either from the evidence or the verdict. Let us return 
to Aaron Burr. " Why is not general Wilkinson here V* Be- 
cause it was impossible in the nature of things for him to be 
here by this time. It was on the first of April that you decided 
on the commitment of Aaron Burr for the misdemeanor; un- 
til that decision was known, the necessity of summoning nvit* 
nesses could not be ascertained.' General Wilkinson is the 
commander in chief of the American troops, in a quarter where 
his presence is rendered important by the temper of the neigh- 



63 

bouri|ood: to sttmmoii him on the mere possibility of com- 
mitment would have afforded a ground of clamour, perhaps a 
just CMie, against the administration. The certainty that Aaron 
Burr would be put upon his trial, could not have been known 
at Washington till the Sth or 6th of April. Now, sir, let the 
gentlemen on the other side make a slight calculation. Or- 
leans is said to be 1500 or 1600 miles from this place* Suppose 
the United States mail travelling by a frequent change of 
horses and riders, a hundred miles per day, should reach Or« 
leans in 17 days from the federal city, it would be the fi4th or 
25th of April (putting all accidents ouiof the question,) before 
general Wilkinson could have received his orders to come on^ 
Since that time until this, he has had thirty days to reach 
Richmond. Could a journey of 1500 or 1600 miles be rea- 
sonably performed in thirty days? Who can bear a journey of 
50 miles per day for thiity'days together? But sir, general 
Wilkinson is not here ; due means have been used to bring him. 
Utfaer; his materiality is ascertained by his affidavit, and the 
attorney does not choose to send up the indictment in his ab- 
sence. Bat we admit, it seems, that we are not ready to make 
good our charge. In my opinion thei^ is evidence enough to 
prove the treason independently of general Wilkinson. But it 
is important in every point of view, that that gentleman should 
be here. It is important to his own reputation: it is in^ortant 
to die people of the United States that he should be here ; and 
on die part of the grand jury, sir, there is no calculating what 
inferences unfavourable to the prosecution might be drawn 
from the mere circumstance of his absence. The attorney is 
therefore, in my opinion, very right not to hazard the justice 
and the fair trial of this case, by sending up the indictment in ge- 
neral Wilkinson's absence. 

But It seems that Wilkinson's affidavit has been already de- 
cided to have no relation to the charge of treason. To what 
general Wilkinson's affidavit tended while it was inomalated, 
insulated, or connected only with that of general Eaton, is no 
proof of what its tendency may be now, in connection with the 
great mass of additional testimony whieh we have collected. 
Sir, we say that it is the key-stone which binds the great arch 
of evidence now in our possession. As to sending up the in- 
dictment, it is out of the question; truth and justice require 
that it should not now be sent up. But we hope, sir, that the 
motion to commit Aaron Burr will be received, because we 
think it not only a legal, but also a just and necessary measure 
of precaution. 

Mr. Hat. — ^On this occasion, I beg leave to n^ake one or two 
preliminary remarks. I stand here engaged in the performance 



r 64 

o*f a very serious duty- The duty I iiave to perfbrm is, indeed, 
most serious and ^important. The sut^ect now before us is one 
which deeply affects the character of the government ; tind the 
charge is the most solemn and interesting that can be exhibited 
Sigaiust any individual. The motion I have to make is, that 

^ Aaron Burr may' be committed on a chtrge of treason against 

the United States! 

Sir, it was natural to suppose, that such a seribos charge 
would have made a most serious impression upon Aaron Burr's 
mind; that he would have roused all the energies of his under- 
standing in his service, in vindicating himself, and not in casting 
imputations upon the government. Why then does he turn from 

I defending himself to attack the administration? Why these com- 

I plaints of persecution which have fatigued our ears? I most so« 

lemnly deny the charge. I most confidently avow, that there is 
not a tittle of evidence to support it. None can be produced, 
unless it be a persecution, that the government brings him before 

^ a legal tribunal, where his guilt or innocence, will be impartially 

established. Aaron Burr stands accused of the highest crimes 
and mbdemeanors ; he stands- charged with a deliberate design 
of involving his country in all the horrdrs of a civil insurrection, 
or of entangling her in a war with a.ibreign nation* This is the 
true question before the court; and instead of meetkig this 
charge with the energy and firmness* which became him; jfifltead 
of conironting it with his evidence,* he complains forsooth of 
persecution! And where^ sir, is this tremendous peiioecotiotii 
*'^ Because he was sent here by a military authority ?" But /Aaron 
Burr has been tried in the countrv where he was arrestod? Was 
Blannerhasset's island in the Mississippi territory? Or ought he 
not to have been conveyed to that judicial district, which possea* 
sed a competent jurisdiction? But if Aaron Burr oilght to have 
been sent hither, by what number of men should he have been 
escorted? Was it by one man only; from whom he coukl.haye 
been so easily rescued, and whose vigilance he could most pro«> 
bably have eluded? Or ought he to have been conveyed) as he 
really was, by the energy of men, like Perkins, whose unshrink- 
ing firmness, and whose humanity (in the presence of Aaron 
Burr himself I avow it, Jet him deny it if he can)^^had com- 
pletely qualified him for the safe transportation of his prisoner^ 
But, sir, when this cry and yell of persecution is once excited^ 
it is not easy to set bounds to its fury. Not contented with in- 
veighing against the pretended persecution of the government; 
a government which never did persecute; a government which 
cannot persecute, and which will for ever stand firm in the 
affections of the people, from the integrity and intelligence 
%vhich mark its measures. Not contented with lavishing their 
complaints against that government, the counsel for the 
prisoner have even turned against the humble instruments, 
who conduct the prosecution. They s.eriously complain, that we 



65 

have given them no previous notice of thift motion; and these are 
the vety men, who have so often oifered motions to this court, 
without the slightest intimation to ourselves. Sir, I most posi- 
tively assert, that no notice in the present case ought to have 
been giveik I shall not pretend to assert, that Aaron Burr was 
disposed, under the present state of things, to eflfect his escape. 
But, I say, that supposing such to have been the fact, and sup- 
posing that, availing himself of the information which we had 
unparted, he should have taken to flight; I appeal to the can- 
dour of every impartial man ; I appeal to the candour of the 
opposite counsel memselves, whether I should not have been 
gmlty of a most gross vidation of my duties? 

But they say, he ought not to be committed, because the pre- 
sence of the grand jury suspends the authority of this court* 
But where are the precedents which justify this position? I have 
not made many researches into this case; because I did not 
suppose that there was a single sceptic at this bar who would 
deny the universality of the proposition that we have laid down; 
that it was the right of the court to commit in every case where 
they deemed it proper. They say, that in this case, the power of 
the grand jury and the court are concurrent. Strang^ that they 
should forget the immense diffisrence between their powers! the 
evidence which is suflkient before the latter, is widely different 
from that which is necessary to be produced to the former. 
The testimony requisite to induce the court to commit the per- 
son accused is less than we are bound to submit to the grand jury, 
and much less than that which alone is admissible before the pe- 
tit jury. I will quote the authority of the gentlemen against them- 
selves. They say, that stronger evidence is necessary before the 
grand jury than before a court for the examination of a prisoner. 
I think differently myself ; but certain it is, that affidavits are not 
admissible to be. sent to the grand jury ; although they may b^ used 
to convince the court that it is proper to commit. For my part, I 
diink we are already in possession of vha voce evidence not only 
snfficieDt to commit colonel Burr, but to induce the grand jury to 
find in favour of both the indictments: but I will boldly inquire, 
whether I should discharge my honest duty, were I to submit 
my indictments before the grand jury at this moment, when I have 
not all the material evidence which we may possess? Sir, these 
gentlemen may cast their groundless censures upon me; but in 
vain: all their clamours will never move me from my purpose. 
The course which I am pursuing is sufficient to satisfy my own 
conscience; and it is indifferent to me whether ten or ten thou- 
sand men should join in my condemnation. 

Mr. Botts asserts, that we have produced no authorities to 
prove our position; and that we have none to produce. But is it 
right to be continually recurring to precedents? Is there no al- 
bwance to be made for the operations of common sense, in anv 

Vol. I. I ' 



• 66 ' ■ 

case ? Where cases of doubt and difficulty occur, a reference of 
this kind is certainly proper to enlighten and fortify our own 
judgments. But even admitting the propriety of introducing 
precedents in the whole extent for which gentlemen contend, it 
is their business and not ours to comply with the requisition for 
precedents. We stand uppn the broad, general principle, that 
courts have the power to commit. If gentlemen contest this prin- 
ciple in the present case, why do they not introduce their coun* 
tervailing authorities? 

I regret that my duty did not permit me to give my friend 
Bf r. Wickham notice of this motion, that he might have more 
seriously meditated upon the subject before he urged his objec- 
tions. If he had understood it wkh his usual correctness, he 
never would have troubled the court with the law of Virginia: 
for this law has not the slightest bearing upon the specific propo« 
sitioR bt:fore you. 

Mr. Wickham inquires why we do not at once send up our 
indictments before the grand jury? Suppose, sir, we should pur- 
sue the course which he recommends; suppose we should send 
up our indictments on the evidence which is now in our posses- 
sion; several days mighi elapse before they would be able to in- 
vestigate this body of evidence. In the mean time, some of those 
numerous persons, who are pr^'inginto every hole and comer of 
this city, might probably catch some distant hint of the probable 
decision of the jury. They have certainly too much discretion 
not to keep their own counsel: but it is absolutely impossible to 
exclude completely the busy eye of curiosity. Some vague in- 
sinuations may probably escape; something which might justify 
a suspicion of their determination. Suppose, then, that Aaron 
Burr was to be actuated by these considerations; suppose that hia 
fears, (if fears he can feel) should prompt him to escape; what, 
sir, would become of our indictment? Mr. Burr may quit the 
United States; he may flee for ever beyond the jurisdiction of 
this country ; and in that case, the whole world would ridicule 
us for the course we had pursued. Or let us even suppose that 
we were ||^ithdraw this motion, where would be our security^? 
Must we Tfust to the indulgence of Mr. Burr himself for re- 
maining in this city and standing his trial? 

We expect general Wilkinson here in a few days. We have 
an affidavit which positively states, that an express to New-Or- 
leans, to command his presence on this trial, was met on the 
frontiers of the Mississippi Territory; we have also letters from 
the attorney general of the United States, explicitly stating, that 
general Wilkinson has been officially authorised to leave the 
army of the United States, and select whatever mode of truii- 
sportation he might think proper. [Here Mr. Hay read the 
davit, shewing that the express to general Wilkinson, had bei 
seen in Athens, in the state of Georgia.] In the mean ttnxe y 



67 

what 18 colonel Burr's situation ? It is completely optional with 
him, whether to stay here and face his accusers, or to avail him- 
self of his liberty and leave the United States. We call upon this 
court to exercise the authority with which they are invested; and 
by binding over colonel Burr, as well on the charge of high trea- 
son, as of a misdeme^or, to detain him here for a satisfactory 
trial* 

We scarcely expected to have been asked, why general Wil- 
kinson was not here? The gendeman himself has said, that he 
is a general. Can he* then leave his army at any time, and with- 
out die permission of the government? Make, however, a com- 
putation of time. The attorney general left this city on the 4th 
or 5th of April. He reached Washington on the Tth or 8th. Al» 
low then a reasonable dme for an express from Washington to 
New-Orleans; and for a man of general Wilkinson^s agie and 
bulk to travel to this city; and is it probable that he could have 
arrived here before this period? If he availed himself of the li- 
berty and means to come by water; the gales have been lately 
very severe. And even two of the grand jury have assured me, 
that if general Wilkinson was exposed to the late tempestuous 
weather, he will probably never see the United States. Mr. 
Wickham has expauated upon the attempts made to prejudice 
the public opinion through the medium of the press. Sir, a great 
deal has been said in the newspapers upon this transaction; and 
a great deal will yet be said. But are the presses shut against 
colonel Burr, when even in this very city certain presses have 
been found to vindicate his motive and designs ? But what of 
all this? The public mind is hostile to any encroachment upon 
the liberty of the press ; and it ought to be so. Where a crime of 
such gigantic enormity, as that attributed to Aaron Burr, arises 
in this country, the printers will speak, and they ought to speak; 
the purest motives will command them to speak. If there have 
been publications against colonel Burr, innumerable communica- 
tions have also appeared in his favour; and^if the publications 
against him have contained the severest strictures, they have re- 
snlted from his own character and conduct; and he has no right 
to complain. 

He stands on the fairest ground which his conduct and cha- 
racter can reach. But if in truth prejudices have been improperly 
excited against him, why does he wish to close the only door to 
bis own vindication, by excluding the evidence. His counsel ex- 
daim, " Send the evidence to the grand jury." Surely if colonel 
Burr wishes to have the evidence before the jury, he should be 
much more anxious to have it before the court. The jury will have 
one side of the evidence only before them; and that will be com- 
pletely against himself. Both, however, will go before the court. 
Why, then,, does he shrink from the evidence? If an unjust pre- 



68 

judice assails him, the light of truth and evidence will dissipate 
it. Why does he shrink ? 

The gentlemen on the other side, continued Mr. Hay, do not 
do us justice. They charge us with persecution and oppression* 
Sir, I never contemplated or wished to hurt Aaron Burr« I scorn 
it. I look not to him. I look only to the duties which I am so- 
lemnly bound to perform. One remark more, sir, and I have 
done : Gentlemen on the other side, insist upon the insufficiency 
of our evidence; because we have withheld our indictments 
from the grand jury, they have hastily inferred, that we feel our 
evidence to be too feeble to satisfy the jury. They are mistaken, 
sir. I assure them that they are mistaken. Iconscientiou3lybeiieve9 
that we have evidence enough, even throwing out the depositions 
themselves, to satisfy the grand Jury of the guilt of Aaron Burr. 
But, sir, puerile indeed would it be for us, under the present 
state of things, to submit our case before the grand jury, on the 
evidence before us, when we are. every moment expecting better. 

Mr. Edmunb Randolph addressed the court to the following 
effect : 

Sir, it would have been impossible for us, even had we receiv- 
ed due notice of this motion, to have availed ourselves of the 
time that was allowed to us. That would have been impossible, 
because the enormity of the proposition itself, would have baffled 
all our consideration, and all our researches. Mark the course, 
sir, which has been pursued towards my unfortunate client. FhBt 
he was brought here under a military escort. Then that little 
folio of depositions and affidavits, was laid before your honour : 
then the charge of treason : and then that little cock*boat which 
was destined to attend this great ship, on a foreign expedition. 
Tou heard it all, sir, and what did you say? You bound colonel 
Burr to bail, simply on the charge of a misdemeanor, to appear, 
here at the opening of court; but not contented with this secu- 
rity, you superadded, that he was not to leave the court until it 
had discharged him. You opened the door, too, for an ulterior 
prosecution; you declared, that if the attorney for the United 
States should obtain any additional evidence, the judgment which 
you then rendered, would not prevent his indicting colonel Burr 
on the charge of treason. 

Sir, thus stands the case, as it was understood by the whole 
universe. On Friday, we came here to meet the whole world; 
Friday, however, passes away, and nothing is done. On Satur- 
day, we came here again ; Saturday, also, passes away, and no- 
thing is done. But on Sunday, sir, (for it seems that day, which, 
to the generality of mankind, is a day of rest, is a day of activity 
to some,) is broached this new fangled doctrine, which now ex-^ 
cites our astonishment. They demand precedents, sir, for our 
conduct; and who are they that require it i Why, sir, they that 



69 

take things oat of the cvdituoy course of the law« For thirty 
yean, I never saw such a pfoeeeding :• I have never read of 
such a one in die English books ; and. yet, these gendemen call 
upon us for precedents. If we were asked for our reasons sir, we 
ahoidd hftve enough to offin* : and first, a judge in the federal 
OMOtf skting in the capacity which your hcmour now fulfils, is in 
the same reiatioo to the accused, as an examining judge is in the 
stale ooQits. But, ^r, who ever invited a single magistrate, or a 
state couit to augment the bail of any individual in the situation 
of colond Burr? If a nun was bound, in a distant county, to 
answer to a misdeineitoor, and another crime was to be brought 
agwnst him, to be predicated on the vety same evidence, have 
you, sir, ever Imown the trying court to increase his bail? There 
never was such an example, su*. 

Mr. Botts' remark, sir, is not to be answered. You are change 
ing the constitutional orfl;an of justice* You are completely blot- 
ting out the functions of a grand jury. The witnesses will be all 
produced before you : but no, improper as this proceeding will 
be, it is still less so, than that which they will actually pursue. 
None of the United States' witnesses will be brought before 
you, but diose whom they may think it politic to introduce; and 
depend upon it, that such testimony will be garbled for the ears 
of this couyrt, as may i)e e:^cted to bijia their judgment. Well, 
sir, and what will be the consequence ? When the grand jury 
are about to retire to their own chamber, they will be told that 
you have demanded additional bail. Are you then, sir, to be a 
pioneer of blood for the grand jury ? Is not this precedent out- 
rageous, sir ? The boasted principle, that no man is to be con- 
demned but upon die verdict of twenty-four of his peers, is gone. 
Throughout this town, it will be universally reported, that you 
have solemnly declared Aaron Burr to be guilty of high treason 
against the United States; and some of those, to whom the ru« 
moor may extend, may hereafter be impaneled on the petit 
jury. And will they feel themselves altogether unbiassed by your 
judgment? Why, sir, let it be declared at once, that the grand 
juiy is to be struck out as an intermediate organ of justice. 

f)o not, I pray you, Bjr,let us suffer for the delays and negli- 
gence of other people* I cannot blame the United States' attor* 
ncy. It is his business to obey the instructions of the govern- 
ment; and if the witnesses are not here, it is certainly no fault 
of his : but surely there is time enough to travel from New-Or- 
leans to this city in seventeen days; even with the gigantic ^^ bulk" 
of general Wilkinson himself. 

Mr. Hay says, our tone iji changed. And how, sir ? We de- 
mand a trud now. We demand a fair trial. But must we not, 
therefore protest against a measure, which is calculated to defeat 
dib object? Certainly, sir. You are called upon to prejudice the 
minds of the grand jury. But, sir, in this interesting case, Where 



i 



[ 



70 

liberty and life themselves are endangered, I trust that some 
hard*mouthed precedents, from old black letter books, will be 
found in opposition to this procedure* We have come here to 
answer to every charge, which may be urged against us: we 
come here to answer in a precedented and constitutional man- 
ner; but little did we expect that the court would decide in the 
first instance^ instead of the grand jury; that the sentiments, of 
the grand jury were to be prejudicated by an unconstitutional 
decision ; and that the court itself was to commit its opinion on 
certain points, which would be regularly brought before them 
for argument and for decision at some of the ulterior stages 
of the prosecution. " Why," said Mr. Wirt, " do you shrink?" 
Sir, trace the course of the prosecution, and see who it is that 
retires from the contest. On Friday the United States' attor- 
ney was not ready ; on Saturday he was not ready ; and now 
indeed he will not probably be ready before Monday next. 
Sir, who is it that shrinks ? and yet does the attorney positively 
aver, that he has evidence enough! 

We are charged, sir, with addressing the multitude. Mr. 
Wirt says that he could, but would not imitate the example; 
but neither he nor Mr. Hay hath spared the theme. Sir, I will 
not deny the justness of his eulogiums upon the administration; 
but permit me only to remark, that there has been a certain 
conduct observed towards colonel Burr which excites my deep- 
est astonishment. When I look at the first man in the govern- 
ment, I behold an individual whom I have long known, and 
whose public services have commanded my admiration. When 
I look at the second, sir, he has my whole heart. But, sir, the 
inquiry which is now before us relates not so much to the in- 
tention as to the effect. An order has been given to treat co- 
lonel Burr as an outlaw, and to bum and destroy him and his 
property. And sir, again; when the house of representatives de- 
manded certain information, as it was their right and their duty 
to do, the president granted it: and would to God, sir! that he 
had stopped here, as an executive officer ought to have done. 
He proceeded, however, to say that colonel Burr was guil^ of 
a crime ; and consequently to express an opinion, which was 
calculated to operate judicially upon the judges and the juries. 
Such was the substratum of all the censures, which have been 
heaped upon colonel Burr. 

Mr- Randolph proceeded to touch upon a subject to which 
Mr. Hay had referred. Colonel Burr was arrested in the Mis- 
sissippi Territory. Was there no court there? was there no judge 
of integrity to try him? arrested too after he had been acquitted 
by a grand jury! Well! he was transported thence (with hu* 
manity it has been said), dragged on by eight musqueteers, who 



71 

were ready to shoot him at a moment's warning; refused any 
a]^>eal to the judicial authority; denied «even the melancholy 
satisfaction of writing to his only child. Was all this humanity? 
Dragged before this court, which derives its only jurisdiction 
from a little speck of land on the Ohio. Yes f sir; but for that 
Btde spot of an island, Virginia never would have enjoyed this 
honour! What is all this, sir, but oppressive and bitter inhu- 
manity? I trust, sir^ from what I have said, that no one will 
think with Mr. Wirt, that I am shifting the question from co- 
lonel Burr to Mr. JeiFerson. I should not have made the ob- 
servations which have escaped me, but to show that my client 
is justified by his situation in stating every objection that he 
can to the present measure. 

Mr. Randolph observed, that at least one disadvantage would 
result from this inquiry; that it was not clear, as Mr. Hay had 
asserted, that the affidavits would be laid before the court only, 
and not before the grand and petit juries, for the grand jury 
would sooh be possessed of the substance of them; and that it 
was next to impossible for them to separate the impressions 
thus illegally to be produced on their minds, from the weight 
of the legal viva voce testimony. 

Mr. Randolph said, that he did not understand Mr. Hay's 
expressions about certain persons in holes and comers; that if 
however he meant spies, there were none such employed by 
colonel Burr; but, although the government certainly had em- 
ployed no spies, yet it has excited so much prejudice against 
colonel Burr, that it was sufficient to make every man in the 
country desirous of contributing his full quota of information 
against him. Mr. Randolph concluded with remarking, that 
the present argument had perhaps been permitted to embrace 
too wide a field of discussion ; and that there were two great 
questions which he should submit to the consideration of the 
court: 1st, Whether there were any precedents in favour of the 
present motion ? and ^d. If a proposition like this, and of such 
great importance, was adopted without any precedent to support 
it, whether it would not expose every man in the country to the 
danger of oppression f 

Mr. Randolph contended, that this was a charge which the 
judge had already decided, on a former examination; that it 
was not a supplemental crime, but the old one; that perhaps 
diere might be some little affidavit to splice out some defect in 
the former evidence ; but what would be the consequence of 
this proceeding? Day after day, another and another affidavit 
would be brought forth. Facts like polypi, are easily cut into 
two or three pieces ; each of which may be made to form a new 
and entire body ; and each of those atoms is to require a new 
recognisance. For one affidavit there must be a bail of 1000 



72 

didlars: another tOdavit, .another 1000 dollars; until Ac biu> 
den of bi^l is. so ofipressive ^as to leave no other resource^ bat 
in the four •walbof a ]>rten* 

Mr. Hat. observed, that he should simply notice one re- 
mark of Mr. Randplph^B« That geademan had used the ezr< 
pression of ^^ pioneer of Uood;" but surely k would opt have es* 
caped him, haui he but for one moment seriously reflected upon 
the court .whom he addressed, upon the counsel he opposed, or 
the government* Satisfied of 'diis, Mr. Hay said he should pass 
the observation by, without further notice. 

Mr. Randolph had stated,. that.no «iipilar case had occurred 
in his thirty years practice. It was not wonderful that such a 
case had not occurred in the time when that gentlen^an wa& at- 
torney for the commonwealth. A great change has taken place 
in the system of our gpyemment. At that time no fedend 
court existed. The mpde of proceeding in the state conrts is 
different from thatherj^. In the system of penal law established 
in the commonwealth of Virginia, there is an examinkig court 
intervening betVeen^e arrest and commitment of a prisoner, 
and his being charged, before the grand jury; but this court 
has. the i^w|ir ta ecnujoinr as well as to commit. Moreover, the 
United(States are a piost extensive country, compared to that 
of Virginia } a most material witness may now be 1500 miles 
from t^e court, before which he is .to appear; and may be at 
the same time at the head of an army; in all which circum* 
stances, the federal and the state sovereignties are different. So 
that this, difference* altogether defeau the application of Mr. 
Randolph's experience to this subject, even if that experience 
had been admitted as a good aufliority in the stale courts* But 
even that gendeman would admit, that had a similar case oc- 
curred before the state courts, the accused >vould have been 
committed. Mr. Randolph asserts, that this motion is made to 
draw forth the opinion of the pourt, and thus to prejudicate the 
minds of the grand jury. But Mr. Randolph has certainly for- 
gotten, that this intelligent and impartid jury are on their 
oaths and their consciences ; and surely this court will not pay 
so litde compliment to their independence, as to admit, that its 
own opinion will be sufficient to bias their judgment; more 
particularly too, when the point before the court is so different 
from that before the jury. It is the business of the court to 
commit; and of the jury to indict: and it is certainly the pri- 
vilege of the court to decide upon written testimony, although 
that point may not be perfectly established and settled as it 
relates to the grand jury. How the court would decide upon 
this point, Mr. Hay said, he could not pretend to know. There 
is another consideration, which should be weighed by the op* 



73 

MBite tounaeL The grand jury is now already embodied. 
They are ready to prooeed with any business which may be 
brought before them; but my great object, said Mr. Hay/is to 
prosecute odonel Burr on the charge of treason. I make this 
declaration, because I believe him to have been guilty of it. 
Let us suppose, however, that the grand jury was to discharge 
colonel Burr, from the misdemeanor; and then that I was to 
brin^^ the present motion* before the court; what resource then 
would Mr. Randolph have? From the present proceeding, 
however, Mr. Burr would derive the advantage of an imme- 
diate trial; whereas, according to Ae other mode of proceed- 
ing, weeks and months migbt escape, before he would be brought 
to trial; and certainly it is, in every point of view, more desir- 
aUe^ both for the government and himself, to terminate this bu- 
siiaesa at once, than to impose upon us the necessity of moving 
for an adjourned trial. 

Mr. Randcrfph says, "We are ready; we were ready on Fri- 
day; we were ready on Saturday, &c." Sir, there are two sorts 
of readiness: one in point of {act, and one under certain circum- 
stances* Now these gendemen will scarcely persuade me, that 
they could be ready to resist the weight of evidence, if it were 
ready to belaid before them ; but there is certainly no difficulty 
in believing, that they are now ready to proceed to trial, when 
die whole evidence, and particularly general Wilkinson's, is 
not present. One more remark: Mr. Randolph has expressed 
a reverence for Mr. Jefferson, which is not certainly derived 
from trifling considerations. I will make but one remark, and 
that gendeman will agree with me in the opinion: Survey the 
many peopled globe, through all ages and nations, and you will 
not find a man more anxiously bent upon promoting the liberty 
of die peoi^e. This was cMtainly the idea which Mr. Ran- 
dcdph intended to convey. Mr. Randolph next proceeded to 
Mr. Madison, upon whom he has not hesitated to lavish the 
most unreserved encomiums. Surely then, after this Solemn 
declaration of the oldest counsel for the prisoner, we shall hear 
no more about persecution. Sir, it is a state of things, which it 
is impossible to reconcile with the amiable character ascribed 
to>^the.two first officers in the government. 

Mr. WiCKHAM observed, that he should offer a few remarks 
on the supplementary arguments of Mr. Hay. That in this case 
colonel Burr's counsel had called, they had a right to call, for 
ffecedents; that Mr. Randolph, who had so ably represented 
diis commonwealth, as a crimmal prosecutor for many years, 
Ittd never known a single one to justify this motion; that how- 
ever true it might be, that the state of Virginia was now of 
saudler extent than the whole of the United States, yet it was 

Vol. I. K 



74 

tlieB cut up into as small judicial districtSyas tlie Unitdd States a| 
present are, smd that uie witnesses in a criminal prosecution 
might have been scattered over those districts, as thev are said 
to be in the present circumstances ; that Mr. RandolfA had re- 
presented not one of those districts, but the whole; not only on 
this side of the mountains, but beyond them ; and even the un* 
cultivated region of Kentucky, where travellmg was at that 
time liable to so many difficulties, and from which it was so 
extremely laborious to transport the witnesses to this side of 
the mountains; that it was not until Kentucky had been more 
thickly populated, that a paiticular court had been established 
there* And what is the case in England and her dependenci^? 
Certainly that island is not equally extensive with the United 
States; but her subjects may, at all events, be scattered over the 
world. Why then, is there no .precedent in that country? Is it 
not probable, that a man might happen to be as far from the 
court of king's bench, as general Wilkinson is from this court? 
and yet there is no precedent to justify this motion. What is 
the crime? Is it of so little importance that this court, upon 
the production of every little affidavit, should consent to hear 
new motions for a commitment? This crime is treason! it is 
^^a levying of war*' against the United States! and where is the 

{iroof of it? where were colonel Burr's* forces ? ws|s his army 
ike that of Bayes, kept in disguise? Wilkinson's testimony 
cannot establish this fact ; for it is the opinion of the chief jus- 
tice, that his affidavit does not at all bear upon this subject; and 
yet two months have since elapsed, and no testimony has been 
collected. Wilkinson's deposition contains an improbable^ 
mysterious tale, about a key and cypher. Mr. Wickham said, 
that he would not, at present, expose this transaction; but doen 
this mysterious tale constitute treason ? ^^ You, sir, hav6 already 
decided, diat there is no treason in Wilkinson's deposition ; butt 
were the man himself in court, what could he establish further, 
than his deposition can do?" Mr. Hay is satisfied, that he has 
sufficient evidence to convict colonel Burr. No man doubts 
his ability, or his inclination to discharge his duty* Why, then, 
does he not lay his indictments before the jury? Because, there 
happens to be a man in New-Orleans, and one, perhaps, in the 
East Indies; and, therefore, ^^to make assurance doubly sure,'^ 
be must wait for their appearance : and all this too, whilst the 
gentleman most seriously protests against oppression and de- 
lay. Though the gentleman may not be conscious of such s^ 
sentiment, as that of wishing to oppress colonel Burr, there 
must still be something like it in his heart: but whatever the 
motive may be, the result to ourselves is the same. It prodti* 
ces delay, and all its consequent oppressions. No court should 
sanction this proceeding. This case is like that of a 



75 

iHiose eause stands for triaL When subpoenas after subpcmas 
have been issued; when sums after sums have been expended; 
he moves for a continuance of his suit^ and at the very same 
time, he insists upon the sufficiency of his evidence. Surely 
the court would rule him to trial. Why is not the attorney for 
the United States ready for trial ? He has, indeed, made a com*- 
putation of time, to show, that Wilkinson could not have been 
here before this period ; and he has besides, introduced an affi- 
davit to show, that an express was on his way to Orleans, to 
give him an early summons. There is however, nothing ia 
proof, that the dl-awer of this affidavit was not imposed on, by 
this express; or that the express himself was not mistaken, as 
to the contents of his dispatches. And how stands the compu* 
tation as to time ? The post goes from Washington to New«- 
Orleans, in seventeen days. Mn Rodney left this city, in the 
last of March. The express must, therefore, have reached 
New-Orleans, about the 20th of April; and yet, where is 
Wilkinson ? Though the Mississippi runs down to New-Or* 
leans, and opposes a strong current to those Who ascend it, 
yet it is surely a reasonable proposition, that on land it re- 
quires no longer time to come thsm to go, and yet general Wii« 
kinson is not nere ! 

Mr. Hay says, it is of no consequence, whether the grand 
jury is present or not. But is this consonant with the sound 
principles of law? Is it constitutional, sir, where there is a par- 
ticular body, set apart for the investigation of facts, for the 
court to step in, and rudely take this power from them ? He 
says, that, perhaps, he shall not send up his biUs before the pre- 
sent grand jury. But I trust in God, sir, that this determina- 
tion will be overruled by the court ; and that if this prosecution 
is ever to be closed, we may see the curtain dropt upon it now 
and forever! .If, sir, the counsel for the prosecution obtain a 
postponement of this trial, and for want of evidence on their 
part, we might probably contend, that colonel Burr, if bound to 
bail at all, should be held in a smaller recognisance than at pre- 
senL But we shall waive this right. It is not our wish to dis- 
charge the grand jury, but to set this question at rest forever. 

We have said, that we were ready for trial. We are so, sir, 
in fact, as well as in the abstract. The prosecutors say, that 
we do not believe them to be ready : but how can the gentleman 
suppose, that we mean to pay so poor a compliment to his ve- 
racity, as to believe, that he acts upon his own facts, as if he, 
himself, did not believe them to be true? 

The gentleman, sir, has warmly eulogized the present admi- 
nifitration. As a private citizep, sir, no man has less to say 
with the politics of this country than myself. That gende- 
man has drawn a picture of our national prosperity; and I am 



i 



76 

happy to hope, that it is true to the life, in every thing, one fea- 
ture only excepted. What, however, will he say of the persecib* 
tion of my clientf Sir, let that gentkman draw the moatanimated 
picture of our happiness, which his imagination can supply; let 
it be howsoever cheering, or howsoever just, it will be but litde 
alleviation to the wounds of my persecuted client, that he is the 
only man in the nadon whose rights are not secure from violation. 

Mr. Burr then rose and addressed the court to the following 
eiFect: 

I am not, I hope, sir, wasting the time of the court upon the 
present occasion. The motion proposed, is admitted oo all hands, 
to be important; and it is certainly a new one. Perhaps it was to 
have been expected, that on a point so novel, some precedents would' 
have been produced; but, in this expeaat ion we have been disap* 
pointed. Its novelty will, however, be productive of another eif- 
fect. It will still better qualify it for making another small fea- 
ture in a picture of oppressions and grievances, which have never 
been paralleled in the records of criminal l^ffr. 

The case is this; no man denies the authority of the court, to 
commit for a crime; but no commitment ought to {>e made, ex« 
cept on probable cause. This authority is nece3sary; because po- 
licy requires^ that the,re shoiild be some power to bind an accused 
individual for his personal appearance, until there shall have been 
sufficient time to obtain witnesses^ for his tri^; but this power 
ought to be controlled as much as possible. 

The question in the present case, is,^ whether there is probable 
cause of guilt; and, whether time Qught.^ be allowed to coUect 
testimony against me I This time ought generally to be jimited; 
but there is no ppecise standard on the subject; and mudt^ is ot 
course left to the sound discretion of the court. Two months 
ago, however, you declared, that there had been, time enough tb 
collect the eviden.ce,.necessary to commit, on probable cause; and 
surely, if thijs argument was good then, it is still better now^- 

As soon aa a prosecutor has notice of a crime, he generaOy 
looks out for witnesses. It is his object to obcain.probable cause 
for committing the accused. Five months ago, a High authority 
declared, that there was a crime; that I was at the head of it; 
and it mentioned the ver}' place, too, where the crime was' in a 
state of preparation. The principal witness against me, is said to 
be Mr. Wilkinson. Now, from what period is the time to be 
computed? If, from the time I was suspected, five months; if^ 
from the time when I was seized, three months; or is it to be only 
computed from the time when I was committed f So that it is 
near forty days since the notice must have arrived at New-Or- 
leans. But a vessel navigates the coast, from New-Orleans to 
Norfolk, in three weeks. I contend, however, that witnesses 
ought to be procured, from the very time when the crimes are said 



I 



77 

to be oominkted. There is^ then^ jeio Zfclogy for the delaj of tha 
prosecution, as far as it respects Ae only person for whom an 
apology is attempted to be made* 

There mre other serious objectsons to my ; sf tuati^n* .^JMiMSt J be 
ready to proceed to trial ? True, «ar,l>ut then it must be in their 
own way. Are we then on equal terms here? Certainly not* 
And again, as to affidavits* The Unttod States can lunFe>com* 
pulsory process to obtain them; but I have no suck advantage* 
An ex parte evidence, then, is brought before this court, on a mo- 
tion for commitment. The evidence on one side only isvexhibit- 
ed; but if I- had mine also to addtice, it twould mobaUy icontra- 
dict and counteract the evidence of the United States. Well, sir, 
and these affidavits are put into the newspapers, and they fall into 
the hands of the ffraod lury. I have no suflh means as diese, sir; 
«^whe« then VZ'Z^ betw<^ t^ «av.n.«eat and 

The opinion of the court, toay^is to he coounitted ngj^iast me. 
Is this no evil ? 

A sufficient answer, sir, has been given to the argument about 
my delay; and its disadvantages to. myself have been ably deve- 
loped. But my coun^ faavie *beea charged with declamation 
against the government of iho United States. ^I certainly, sir, 
sbaO not be charged vni^ dedjunatiqipd; hut surely it is an esta- 
blished principle, sir, that no government is so high as to be be- 
yond the reach of ciiticism; and it i^ more particularly laid down> 
that this vigilance is more peculiarly necessary, when any go- 
vernment institutes a prosecution : and one reason is, on account 
of the vast disproportion of n^ans which exists between it and 
the accused. But, it ever there was a case which justified this vigi- 
latK^ At^is certainly the present one, when the government has 
diapbyed such un^mmon activity. If, then, this government has 
been ao peculiarly active against me, it is not improper to make 
die -assertion here, for the purpose of increasing the circumspec- 
donof the court. :. 

Mr. Burr (^)served, that he meant by persecution, the harass- 
bg of any individual, contrary to the forms of law; and that his 
case, unfortunately, presented too many instances of this descrip- 
Uon. He would merely state a few of diem. He said, that his 
friends had been eveSry where seized by the military authorityi 
a practice truly donsonant with European despotisms. He said^ 
that persons, had been dragged by compulsory process before 
panticular tribunals, and compelled to give testimony against him. 
His papers, too, had been seized. And yet, in England, where 
we say they know nothing of liberty, a gentleman, who had been 
seized and detained two hours, in a hack parlour, had obtained 
damages to the amount of one thousand guineas. He said, that 
an order had been issued to kill him, as he was descending the 
Mississippi, and seize his property. And yet, they could only- 



78 

have killed his person, if he had been formally condemned fot 
treason. He said, that even post-offices had been broken open, 
and robbed of his papers; that, in the Mississippi Territory, even 
art iiidictment was about to be laid against the postmaster; that 
he had always taken this for a felony; but that nothing seemed 
too extravagabt to be fttrgiven by the amiable morality of this 
government. All this, said Mn Burr, may only prove that my 
case is a solitary exception from the general rule. The govern* 
ment may be tender, mild and humane to every one but me. If 
so, to be sure it is of little consequence to any body but myself. 
But surely I may be excused if I complain a litde of such pro« 
ceedings. Mr. ^urr said, there seemed to be, something mingled 
in those proceedings, which manifested a more than usual inclina- 
tion to attain the ends of justice : as for as it related to himself, 
perhaps, these things were of no account; but what was then to 
be said of those and other measures, such as the suspension of 
the habeas corpus act, which concerned the Whde nation ? If in 
the island of Great Britain such a measure wad calculated to 
produce so much disturbance, what kind of sensation ought it to 
produce in this country. 

Our president, said Mr. Burr, is a lawyer^ and a great one 
too. .He certainly ought to know what it is, that constitutes a 
War. Six months agb, he proclaimed that there was a civil war* 
And yet, for six months have they been hunting for it, and still 
cktmot find otie spot where it existed. There was, to be sure, a 
most terrible war in the newspapers; but no where else. When I 
appeared before the grand jury, in Kentucky, they had no charge 
to bring sgainst me, and t was consequendy dismissed. Whc^n I 
ajppeared for a second time, before a grand jury, in the Missis* 
sippi Territory, there was nothing to appear against me; and the 
judge even told the United States attorney, that if he did not 
send up his bill before the grand jury, he himself would proceed 
to name as many of the witnesses as he could, and bring it before 
the court. Still there was no proof of war. At length, however, 
the Spaniards invaded our territory, and yet, there was no war. 
But, sir, if there was a war, certainly no man can pretend to say^ 
that the government is able to find it out. The scene to which 
they have noW hunted it, is only 300 miles distant, and still there 
is no evidence to prove this war. 

Mr. Burr requested the court to consider the consequence 
which would now result from a conunitment for treason; that if 
he were bound now, the law of Virginia declared, that he 
should so remain until the next term; that this delay was the 
very inconvenience he would wish to avoid; and that he pre- 
sumed he ws^ to remain in prison six months, until they could 
find out this war- 
Here the arguments closed, and the court then adjourned till 
to-morrow morning at ten o'clock. 



79 

Tuesday, May 26th, 1807. 

Tht foUovnng Opinion was delivered by the Chief yustice of the 
United States^ on Mr* Hay^s motion to commit colonel Burr. 

IN considering the question which was ai^ed y^t^rday, it 
appears to be necessary to decide: 

lat, Whether the court, sitting as a court, possesses the power 
to commit any person charged with an oifence against the United 
States. 

2dly, If this power b^ possessed, whether circumst^cea 
exist in diis case which ought to restrain its exercise. 

The first point was not made in the argument, and woul4, if 
decided against the attx>rDey Cor the United States, only change 
the mode of proceeding. If a doubt can exist respecting it, that 
doubt aiises from the ombsion in the laws of the Upited States 
to invest their courts, sitting as courts, with the power in ques- 
tion. It is expressly given to every justice and judg^, but not tQ 
a court. 

This objection wa9 not made on the part of colonel Svrr, and 
is now mentioned, not because it is believed to present any in- 
trinsic difficulty, but to show that it has been considered. 

Tliis power is necessarily exercised by courts in discharge of 
their fiinctions, and seems not to have been expressly given; be- 
cause it is implied in the duties which a court must perfon^, and 
the judicial act contemplates it in this light. They have cogni- 
sance of all crimes against the United States; they are com- 
posed of the persons who can commit for those crimesi; and it 
is obviously understood, by the legislature, that the judges n^ay 
exercise cdUectively the power which they possess individually, 
so far as is necessary to enable them to retain a person charge4 
with an offence in order to receive the judgment which ipay 
finally be rendered in his case. The co.urt say, this is obviously 
understood by the legislature; because there is no clause expressly 
giving to the court the power to bail or to commit a person, who 
appears in discharge of his recognisance, and against whom the 
attorney for the United States does not choose to proceed; and yet 
the thirty-third section of the judicial act evinces a clear under- 
standing in the legislature, that the power to take bail is in pos-r 
session of the court. 

If a person shall appear in conformity with his recognisance, 
and the court passes away without taking any order respecting 
him, he is discharged. A new recognisance, therefore, or a £om- 
mitroent on the £ulure to enter into one, is in the nature of an 
original commitment, and this power has been uniformly exer- 
cised. 

It is believed to be a correct position, that the power to com- 
mit for offences of whiph it has cognisance, is exercised by every 



80 

court of criminal jurbdiction, and thtt courts as well as individual 
magistrates are conservators of the peace. 

Were it odi(enHrise,4he consequence would <»ily be, that it 
UTOuld become the duty of the judge to descend from the bench, 
and, in his character as an individual magistrate, to do that which 
the court is ashed to do. ■ 

If the court possesses tha power, it is certainly its duty to hear 
the motiM wlikh lias been made on the part of the United 
States; for, in cases of the character of that under consideration, 
its duty and its power are coextensive with each other. It was 
observed when the moti<Hi was made, and the observation may 
now be repeated, that the arguments* urged on the part of the 
accused rather prove the motion on the part of the United States 
unnecessary, or that inconveniences mfty result from it, than the 
want of a legal right to make it. 

The first is, that the grand juiy being now in session ready to 
receive an indictment, die att«vmey for the United States ou^t 
to proceed by bill instead of applying to the court, since the atity 
purpose of a commitment is to bring the accused before a^grand 
jury. This statement contains an intrmsic error -which destroys 
Its operation. The conimiiment is not made for the sole purpose 
of bringing the accused b^fisre a grand jury; it is made for the 
purpose of subjecting him personally to the judgment of the law, 
and die grand jury^is only, the fimt step towards that judgment. 
If, as has been argued, the commitment was simply to detain the 
person until a grand jury could be obtained; then its operation, 
would cease on the assembling of a grand jury; but such is not., 
the fact. The order of commitment retains its force while the 
jury is in session, and if the prosecutor does not proceed, the 
court is accustomed to retain a prisoner in ccHifinement, or to 
renew his recognisance to a subsequent term. 

The arguments drawn from the general policy of our laws; 
from the attention which should be bestowed on prosecutions, 
instituted by special order of the execudve; from the peculiar 
inconveniences and hardships of this particular case; from the 
improper etfects which inevitably result from this examination, 
are some of them subjects for the consideration of those who 
make the motion, rather than of the court; and others go to the 
circumspection with which the testimony in support of the mo- 
tion ought to be weighed, rather than to the duty of hearing it. 

It has been said that colonel Burr already stands charged with 
treason, and that, therefore, a motion to commit him for Uie same 
offence is improper. But the fact is not so understood by the 
court. The application to chai^ge him with treason was rejected 
by the judge to whom it was made, because the testimony oflered 
in support of the charge did not furnish probable cause for the 
opinion, that the crime h^d been committed. After this rejec« 
taon, colonel Burr stood, so far as respected his legal liability to 



81 

)iave die charge repeated, in precisely the same situation as if it 
had never been made. He appears in court now as if the crime 
of treason had never before been alleged against him. I'hat it 
has been alleged^ that the government had had time to collect 
testimony for the establishment of the fact, that an immense 
crowd of witnesses are attending for the purpose, that the prose- 
cutor in his own judgment has testimony to support the indict- 
ment, are circumstances which may have their mfluence on the 
motion for a commitment, or on a continuance, but which can- 
not deprive the attorney for the United States of the right to 
make his motion. If he was about to send up a bill to the grand 
jury, he might move that the person he designed to accuse, should 
be^rdered into custody, and it would be in the discretion of the 
court to grant or to reject the motion. 

The court perceives and regrets that the result of this motion 
may be publications unfavourable to the justice, and to the right 
decision of the case; but if this consequence is to be prevented, 
it must be by other means than by refusing to hear the motion. 
No man, feeling a correct sense of the importance which ought 
to be attached by all to a fair and impartial administration of 
justice, especially in criminal prosecutions, can view, without 
extreme solicitude, any attempt which may be made to preju- 
dice the public judgment, and to try any person, not by the laws 
of his country and the testimony exhibited against him, but by 
public feelings, which may be and often are artificially excited 
against the innocent, as well as the guilty. But the remedy, for 
a practice not less dangerous than it is criminal, is not to be 
obtained by suppressing motions, which either party may have a 
legal right to make. 

If it is the choice of the prosecutor on the part of the United 
States to proceed with this motion, it is the opinion of the court 
that he may open his testimony. 

Mr. Hay then rose, and observed, that he was struck with 
the observations of the court relative to *^ publications," and he 
would attempt if possible to make some arrangement with the 
counsel on th^ other side to obviate that inconvenience; and he 
understood they were disposed to do the same. 

The counsel on both sides then retired by permission of the 
court for this purpose. They returned in a short time; and Mr. 
Hay informed the court that the counsel for the United States^ 
and for colonel Burr, not having yet been able to agree upon any 
arrangement which would attain his object, namely, that of having 
colonel Burr recognis'ed in a sum sufficiently large to insure his 
appearance to answer the charge of high treason against the 
United States; without incurring the inconvenience resulting 
from a pubKc disclosure of the evidence at this early stage of 
die pfxKeeding, wished to have further timte for that dc- 

Vor^ I. L 



82 

sirable purpose. This was granted by the courts and it then 
adjourned till next day. 

Wednesday, May 27th, 1807. 

Mr. Hay informed the court, that all hopes of the arrange- 
ment which he had mentioned yesterday were at an end: for he 
had received a letter from colonel Burr's counsel, positively Te- 
fusing to give additional bail. He therefore deemed it his duty 
to go on with the examination of the witnesses in support of his 
motion to commit Mr. Bum He observed, that he regretted 
extremely that it became necessary in his judgment to pursue 
this course. He felt the full force of the objections to a disclosure 
of the evidence, and to the necessity of the court's declaring its 
opimoD, before the case was laid before a jury; but those consi- 
derations must yield to a sense of what his engagements to the 
United States imperiously demanded of him: that in adducing 
the evidence, he should observe something like chronological or« 
der. He should first read the depositions of the witnesses who 
were absent, and afterwards bring forward those who were pre- 
sent, so as to disclose all the events, as they successively hap- 
pened. 

Mr. WicKHAM stated that there were two distinct charges 
against colonel Burr. The first was for a misdemeanor, for 
which he had already entered into recognisance; the second 
was a charge of high treason against the United States, which 
was once proposed without success, and is now again repeated. 
On this charge the United States must substantiate two essential 
points: 1st, That there was an overt act committed; and 2dly, 
That colonel Burr was concerned in it. Every thing that does 
not bear upon these points is of course inadmissible ; thp course 
therefore laid down by the attorney for the United States is ob- 
viously improper. He proposes to examine his witnesses in a 
kind of chronological onder. 

Colonel Burr requires that the evidence should be taken in 
strict legal order. The court and even the opposite counsel will 
see the propriety of observing this order. If the attorney for the 
United States has affidavits to produce, let him first demonstrate 
that they have a right to produce them. We first call upon him 
to prove, by strict legal evidence, that an overt act of treason 
has been committed. If he cannot establish that one point, all 
the evidence which he can produce, is nugatory and unavailing. 

Mr. Hay had no doubt, that the gendeman would, if he could, 
suppress all the evidence; that although that gendeman had been 
so good as to prescribe for him the course he ought to pursue^ 
he should still pursue his own course; and he would assure 
that gentleman, tthat he was almost the last person in the world, 
whose advice on the present occasion he would pursue. Mr. Hay 



83 ' 

obaerved, that he could not consent to such a separation of the 
evidence, as that gentleman required; that he should lay all his 
evidence before the court, and that the court must separate for 
themselves* 

The two charges which are brought against Aaron Burr are 
naturally and intimately blended. They form distinct parts of 
one. great design. What that great design was, in all its bearings 
and ramificaticms, I am not absolutely certain; but I have always 
conceived, that before Mexico was invaded, New-Orleans was 
to be taken. How then is it possible to separate these two great 
aUegadons? This monstrous design consists of two great plots; 
both going on together; and both so strongly connected, that 
accomplishing the one is preparatory to accomplishing the other. 
If Aaron Burr's object was to plant his standard in Mexico, he 
was first to have seized the shipping and banks of New-Orleans. 
We ask then, how can we separate line by line, and word by 
word, the evidence produced to prove these two distinct allega- 
tions? The designs are connected: and the evidence is .connected. 

Mr. Burr rose to speak, when Mr. Hay proceeded to the fol- 
lowing effect : I have a litde more yet to say. If, sir, exceptions 
are thus to be continually taken to the most common measures; 
if in this way every inch of ground is to be disputed, contra- 
ly to every practice that has prevailed in.otu* country; in- 
stead of ten hours, or ten days, this trial will take up ten years. 
What an extraordinary proceeding is this, sir ! Why, sir, we are 
not to steer our course even five inches without encountering 
some unusual difiiculty or other ! and yet these gentlemen talk 
of precedents. And where, sir, are the precedents for this, that 
the counsel before an examining court is to be instructed how to 
bring out his evidence ? I never saw such a thing done before; 
such a thing ought not to be done. It is novel in itself, it is im- 
possible to be supported. Gendemen may make motions as they 
pkase: but they will not drive me from my purpose. I will or I 
win not produce my evidence, whether it pleases them or not. 
And sir, it is a poor compliment indeed that these gentlemen of- 
fer to the bench whom they address! If a deposition states any 
thing or a wimess says any thing which is irrelevant to the case, 
cannot the court be trusted widi these distinctions? Cannot they 
decide, whether this evidence is to be weighed,or that to be reject- 
ed? DcLthey distrust the judgment of the court ? No, sir, they 
do not; but they wish to hamper us with every trifling difficulty, 
which they can throw into our path. The present, sir, is a most se- 
rious allegadon. It affects the life and character of the accused. 
He has come forward with assertions of his own innocence ; and 
he charges us with persecution. But, sir, does it evince any con- 
sciousness of innocence, thus to be going against every precedent 
established in this or any other country ? Sir, I trust, that the 
court will go on in spite of all opposition. 



84 

Mr. WiCKHAM stated, that having taken the liberty of sug- 
gesting this course of proceeding, he should advance a few ob- 
servations on it; and he did this the more readily, because it 
had been insinuated that no man, standing like himself as a pro- 
fessional man, would have made a modon of this sort, f Mr. Hay 
declared he had said no such thing.] Mr. Wickham said he had 
rights as counsel for his client, and he had rights belonging to 
himself. No man is hea^d for himself; but so long as they employ- 
ed professional men to defend them, these had a right to pursue 
the best course they could devise for the benefit of their client. 
He would therefore go on. 

Mr. Hay speaks of two distinct charges; the invasion of Mex- 
ico, and the seizing of New-Orleans : but he declares them to be 
necessarily blended. How sof Could not a man "levy war** 
against the United States without an invasion of Mexico ? In Penn- 
sylvania we have seen an insurrection against the United States, 
but no invasion of Mexico. Much is said of the loss of time, 
and of certain difficulties thrown in the way of the prosecution. 

As to the first, sir, let the world decide whether he or we have 
most pleaded for delay; at all events, we cannot entertain any 
fear that this court will be impatient. As to the difficulties in 
their way, we will say this: let the gentlemen pursue a regular 
course ; let them bring this business before the grand jury, and 
we shall make no objections. But, sir, if they pursue this course 
over and over again; if they are continually throwing difficulties 
in our way ; we shall mete out to them the same measure 
which they mete to us. Who has ever known a proceeding 
like the present? Who has ever heard of the practice of com- 
ing out at such a stage as this with a distinct substantive 
charge, not growing out of the evidence before the court, but 
from other sources? Surely these gentlemen do not cry out for 
mercy : they stand upon the law ; and law they shall have. Gen- 
tlemen say, that no such exception as thi^ was evei' taken before 
an examining magistrate. But, sir, where are the reporters that 
attend private magistrates, to record th^ir precedents? Magistrates 
are to go by law ; and what law ? They must observe the rules of 
evidence. Would gentlemen introduce their witnesses without 
swearing them ? But the court must have all the evidence before 
them ; and " they must separate" the good from the bad: but 
is this consistent with common sense ; is it consistent with the 
books? The practice has always been, when an attorney intro- 
duces a writing into court, for the court to ask what he is to prove 
by it ; when he introduces a paper, to show the general contents 
of that paper. This was the practice on the memorable trials of 
Hardy and Tooke in England. In chancery business, indeed, a 
practice has crept in for the judge himself to read papers with- 
cmt knowing any thing of their general contents ; but thb is done 



85 

merely for the sake of convenience, and will not certaiidy apply 
to criminal prosecutions. 

It is asked, ^^ Are we afraid to trust the court" with this evi- 
dence ? No, sir, we are afraid to-trust the court with nothing : 
but we do fear to prejudicate the mind of the grand jury, by this 
premature and illegal exhibition of evidence. Let the time come, 
when colonel Burr is to come regularly before the jury, and we 
shall then see who- shrinks from the testimony. A number of 
other remarks have been made, sir, about c(donel Burr's appre- 
hensions. All propriety and decorum have been set at nought: 
every idle tale which is set afloat has been eagerly caught at. 
'I'he people here are interested by them; and they circulate all 
over the country. Sir, if the attorney for the United States shall 
choose to send up his bills before the grand jury, then I hope the 
whole evidence will be laid before the world, and we shall hear- 
no more of rumours and prejudices. 

These gendemen say, ^^ Shall you pretend to order us; shall 
you dictate ?" No, sir, xhe law must dictate. The gemdemen, in- 
deed, have produced a series of irrelevant writings and papers; 
and they must, forsooth, pursue a chronological order. No, sir, 
away with such informalities. Let gentlemen prove an assem- 
blage of men for war. Let them prove the overt act. If they do 
not, I confidently hope, that colonel Burr will be discharged. 
Mr. Wickham here read a quotation from Foster's Obcourses 
on High Treason. 

Mr. Burr did not expect an opinion of the court, since no 
motion had been made. Mr. Wickham had only given notice to 
the opposite side, that they should follow the strictest rules of 
law. If it was for a suit of 10/. only, he should ask for the laws 
of evidence. 

The Chiev Justice said, it would certainly be better, if evi- 
dence was produced to prove the facts first, and the evidence to 
show their colouring : for no evidence certainly has any bearing 
npon the present case, unless the overt act be pi*oved. However, 
if the attorney for the United States thinks the chronological or- 
der the best, he may pursue his own course; but the court trusts 
to turn, that he will produce nothing which does not bear upon 
the case. 

Mr. Wirt. — ^We coincide with the opinion of the court, that 
an overt act ought to be proved, and that we ouglu to produce 
no evidence at all, unless we believed we had enough to prove 
the overt act. We do believe that we have sufficient evidence for 
this purpose ; but we think it best to pursue something like a 
chronological order: to take this conspiracy in its germ, to go on' 
Step by step, and to trace out every event as it subsequently 
arose. 



\ 



96 

Mr. Hay observed that it would be necessary to give evi* 
dence to show the temper of mind of the accused : as for in- 
stance, Mr. Stoddert would show his hostility to the administra- 
tion, and even to the government. To show this disposition of 
mind might lead to treasonable designs, to f^ai^s, and tbence to 
overt acta. This was the natural order of things, and of the evu 
dence. . He hoped, that in drawing out this evidence, the court 
would rely upon his candour and humanity, that he would pro* 
duce none which he did not believe to bear upon the fact. 

Mr. Randolph said, that however he might respect that gen- 
tleman's humanity, he knew too well the temper of any proseou- 
tion to expect much from it. They are for strict law, said Mr.. 
Randolph, and so are we. In England, before a witness is heard^ 
it must be stated in general terms what he intends to prove. 
The same practice ought to prevail here. Let the attorney for 
the United States state the substance of each part of the tesdmony 
he is to produce, and the court will then perceive, whether it is cal- 
culated to bear upon the case itself, or whether it is only intend- 
ed to inflame the public prejudices against colonel Burr. We 
demand, that the overt act be first proved : without that, the ac- 
cessorial evidence is of no kind of use. Let that be established^ 
and the accessory facts will thsn have their weight. I hope, sir, 
if the attorney for the United States does not introduce his 
evidence on that point, we shall be at liberty to suppress all the 
irrelevant testimony. 

Mr. BoTTs said he should leave it to the court. 
Mr. Hay. — Agreed. 

The Chief Justice decided, that the attorney for the Uni- 
ted States might pursue whatever course he thought best. 

Mr. BoTTs. — Send us the written testimony before you sub- 
mit it to the court. 

Mr. Hay. — As I said before, I shall take up the deposidons 
first, and then the viva voce testimony in a chronologiod order* 
I shall first introduce general Wilkinson's deposition. 

Some desultory conversation then ensued, between Mr. Hay 
and Mr. Botts, on the latter demanding the liberty of examin- 
ing the deposition. At length, Mr. Hay handed the paper to him. 
Mr. Botts then addressed the court. 

Mr. Botts — In my objections to general Wilkinson's affidavit, 
I may be compelled to question the correctness of principles, in 
favour of which the court has expressed an impression. It has 
been our misfortune, to have been drawn out into a desultory dis- 
cussion of some of the propositions, fixing limits to the examina- 
tion; when these propositions had such relation to each other. 



87 

and among themselves, as to render it difficult to fortify one A 
£ectaaDy against assault, without the support of the others. And 
although the subject was not wanting in novelty or importance, 
to fit it for solemn argument, yet the complaints of the prosecutor, 
so often, so loudly, and so causelessly repeated, have forced from 
the court a premature intimation of judgment. I feel the per- 
pkzity of my situation most sensibly, and shall hope for the in* 
dulgence of the court, if I should unwarily stray into the seem- 
ing indecorum of resisting, now and then, an inclinadon of the 
mind of the bench. Whenever I venture into a scene so deli- 
cate, I shall present to the court authorities not to be resisted. 

llie opinion of the supreme court overruling the objection, 
that the oath administered to general Wilkinson was extrajudi- 
cial, fixes the law for this court. The best evidence that the nature 
of the case will admit of, should be produced. This rule applies 
to every stage of every case in every court. The failure to produce 
die best evidence that the nature of the case admits of, furnishes a 
presumption, that the higher evidence left behind, would, if pro- 
duced, niake against the party offering the weaker. All this is 
familiar in civil cases, where 40^. may be the quantum of interest 
in litigation. The benefit of this common law, and common sense, 
ought not to be lost, when the liberty of a citizen is concerned; 
when a six months' imprisonment in a dungeon may be the ob- 
ject of the motion. The suprenie court considered an affidavit 
as the best evidence the case then admitted of. The accusation 
was fresh, and neither time nor means had been allowed for pro- 
curing a personal attendance. Now, the accusation is old, and 
die government has had all the necessary means of bringing the 
witness here* The circumstances do, therefore, now admit of 
higher evidence than an ex prirte affidavit. 

The viva voce testimony of general Wilkinson is the right of 
my client. No man should be deprived of the benefit of a cross 
examination, without necessity. You have in another place said, 
sir, that it was to be made out only by inference from general 
Wilkinson's affidavit, that colonel Burr was the writer of the 
letter in cypher. If the witness was here, he would impugn that 
inference, by swearing that it was not in colonel Burr's hand writ- 
ing. If general Wilkinson was present, would you admit his af- 
fidavit? If he ought to have been present, and the government 
would not get him^ shall the prosecution be favoured for its 
negligence ? 

But the present charge is confined to high treason, in levying 
war against the United States; and the great question is, whether 
Wilkinson's evidence is in any form pertinent to the charge ? I 
do not mean to urge the objection, that if it develops any crimi- 
nri purpose, it is not a treasonable purpose; for this construction 
has been setded by the supreme court Admitting for the time, 
diatit contained evidence of a treasonable purpose, and that the 






88 

dpinton of the supreme court is to be orerruled, still the evidence 
would be most impertinent upon the present charge of €u:tual 
treason. 

I have alluded to legal propositions, intended to be pressed^ as 
jTormiiig legal restrictions upon the task in which we are engaged. 
I will first .cophine them, that their fitness to each other, and 
their collective effects,, may Jse seen* My second process will be 
to disunite, theip, and by^ah analytical comparison of them with 
the known principles of our treason laws, lo ascertain their 
legality. - - ; ... 

No evidence of any matter .ought to be given, until proof shall 
be adduced, that there Was an actual war levied in the district of 
Virginia; and^^uptil it ivp^pved that an overt act of treason, in 
that war, was done by coMnel Burr, which proofs shall be by 
two witnesses at least First, It must be proved that there was 
an actual war. ' A war consists wholly in acts, and not in intea- 
tions. Tbe^f^ts must be in themselves acts of war; and if they 
be not so int^qsically, words or intentions canndt make them so. 
In Englaad, when conspiring the death of the king was treason^ 
the quo animo formed the essence of the oflFence; but in Ame* 
rica, the national convention has confined treason to the act. 
We cannot have a constructive war within the meaning of the 
constitution. An intention to levy war, is not evidence that |i 
war was levied. Intentions are always mutable and variable; the 
continuance of guilty intentions is not to be presumed. If this 
were not the case, the avowal of a purpose to levy war would 
fix the crime. For a proved intention might be attached to the 
next innocent act oiF the person who formed it; and so, prepara* 
tions of emigration be turned into a levying of war. It has been 
eloquendy declared, that war cannot exist in a closet, or a cor- 
ner; but when levied, it must be in the face of the world. This 
cannot be true, if the recesses of the bosom are to be explored 
for any of the ingredients in the composition of the crime of le^ 
vying war. The guilty intention must be made manifest from 
the act alone. General Wilkinson professes to know nothing 
but of intentions, which are not evidence of acts. 

Secondly, The war must not only have been levied, but colo- 
nel Burr must be proved to have committed an overt act of trea* 
son in that war. A treasonable intention to cooperate is no 
evidence of an actual cooperation. The acts of others, even if in 
pursuance of his plan, would be no evidence against him. It 
might not be necessary that he should be present, perhaps; but 
he must be, at the time of levying the war, cooperating by acts, 
or, in the language of the constitution, be committing overt acts. 
The acts of associates, in a treasonable plan, in countries where 
the doctrine of constructive war prevails, can never be given in evi- 
dence, againslt the accused, until after the plan has been proved on 



89 

the latter, knd until such acts shall appear to have been within 
the limits of that plan. 1 East's Crown Law, 96, 97. Part 
of the proof in this a£Sdavit is of the declarations of a sup- 
posed associate, as to what the plan itself was* But in this coun- 
try, as there cannot he a constructive treasonable war, plans, and 
acts of associates, can only come in when the former have been 
executed, and the latter have been visibly and publicly assisted* 
Tucker's Black, vol. 4. Appendix B. 

Thirdly, The overt act by the accused, in an actual war, must 
not only be proved, but it must be proved to have been commit* 
ted within this district. The fifth article of the constitution of the 
United States, and the eighth article of the amendments to the con- 
stitution, require, ^t the trial shall be by a jury of the district 
where the ofleoce was committed. The oath of the grand jury 
is, accordingly, to inquire of offences within the district. The ju- 
risdiction of this court is also limited, by express law, to offences 
within the district; and it is obviously true, that the court's juris- 
diction cannot be broader in an incipient inquiry than it would 
be in its connexion with a jury on a final triaL Doctor Black- 
stone, in the fourth volume of his Commentaries, 303, refers to the 
oath of the grand iury, ^ to inquire" into offences committed 
within the body of the county, and denies the right of the grand 
jury to inquire into facts out of the county. In preparing a 
work fi3r the grand jury the court cannot disregard the limits of 
their power. The crime to be committed in the district must be 
wholly committed there. At the common law, if the stroke 
was given in one county, and the person striken died in another^ 
the murderer could not be prosecuted in either. To remedv this 
defect, and to provide for others similar to it, many provisions 
have been made by the English parliament. 4 Black. 303, 4, 5. 
But the English parliament never did alter the common law, as 
it respected the crime of levying an actual treasonable war. Ke- 
lyng, 15. The constitution and act of congress have both adopt- 
ed the rule of location. Tucker's Blackstone, vol. 4. Appendix B« 
49, 50, 51. Granting then, that intention may make that war, 
which would not otherwise be so, still, as a formed intention is 
no proof of its own continuance or execution, the intention must 
be proved to have been cotemporaneous and homogeneous with 
the act in the district. In this view, the intention forms a consti- 
tuent part of the offence. If one constituent part of the offence 
can be brought from without the district, and coupled with others 
in the district, anyone constituent part, or number of constituent 
parts,of the crime, may be brought from without the district. Then 
one component part only happening in Virginia, out of one hun- 
dred necessary to its completion, would give this court jurisdiction; 
and thence one, out of one himdred parts of a crime, would be 
a crime within the meaning of the jconstitution. Let us view the 
consequences of this logic* 

Vou I. M 



Upon proof against colonel Burr toa«hing a crimCf part of 
wbtch'was committed in this district, he may b« tried and ac 
quitted. In Ohio he may be indicted, and evidence may be 
prepared touching the same crime. Can he plead autrefois ac- 
quit in bar, by averring, that the crimes charged in the two 
states was one and the same! His averment would be against 
the record of the indictment charging a complete separate 
crime in each district. Will you, sir, put upon the constitution 
such a construction as will subject a citizen to be hunted dowfi, 
by trial after trial, in state after state, as long as the perse* 
cuting spirit of a wicked executive may last? Do not under- 
stand me to allude, in this, to the present administration, the 
characters of which I have been in ^e habit of admiring; but 
the construction now to be fixed must go down to posterity, 
and may be made instrumental in effectiqg the worst of state 
oppressions. 

Remember that colonel Burr has forborn to avail himself 
of this legal principle in Kentucky and in the Mississippi Ter- 
ritory, in order that the merits of his case might come before 
the inquests ; but it ought now to be agreed that he should pro- 
tect himself from being harassed further, by calling into ex- 
ercise the great principles of the constitution, declaring that no 
man shall be twice put in jeopardy of his life for the ^ame of«* 
fence. See amendments to constitution. Now, what part of 
the affidavit speaks of a fact within the district ? 

Fourthly, The overt act of treason bv colonel Burr within 
the district must be proved by two witnesses. The consti- 
tution ani act of congress require two witnesses, not only 
to the act, but to the treasonable quality of the act. After 
full time has been afforded to collect all the witnesses in 
the power of the government, the accused ought not to be de- 
prived of his liberty, unless it was believed that the evidence col- 
lected would convict him: imprisonment is only intended for 
trial and not for punishment. By what does general Wilkin- 
son's affidavit make out intentions ? The answer is, by the con- 
fessions of the accused or of his supposed associates. The 
Confessions of the accused, by the express words of the consti- 
tution, are not evidence, unless made in Open court. Confes- 
sions are often admitted, from necessity, to get at crimes that 
deal in secrecy; as larceny, forgery and robbery : but the safety 
of the people requires that crimes, which deal in publicity, as 
does the crime of a treasonable war, should not be proved by 
evidence so incapable of exculpatory proof. When ah honour- 
able gentleman (Mr. Giles) was challenged the other day 
upon a suggestion of his having expressed himself upon the 
case of the accused, he said he was indisposed to hear evidence 
of unguarded expressions, in which the witness might have 



91 

tiiista][en his meaning; have misunderstood what he said, or 
not have heard all that he said; or have substituted his own 
inferences for the words of the speaker. Blackstone and Fos- 
ter have chatacterised it to be the most dangerous species of 
evidence, ever liable to misconstruction and abuse. But if the 
constitution has proscribed it, why now question its exclusion? 
If the confessions of the accused, out of court, could not be 
ievidence, against him, could the confessions of real accom- 
plices be evidences against him? Yet the evidence of Wilkin- 
son relates, in part, to the confession of pretended accomplices, 
no way proved to have been authorised by cofenel Burr to say 
or to do any thing. 

But why, it may ht asked, id colonel Burr afraid to hear il- 
legal evidence, if he is consciously innocent? 

We see witnesses from different and distant parts of the 
United States, whose names, faces and characters, are alike 
unknown to colonel Burr. He cannot ascertain upon what pans 
of his life or conduct they are expected to speak, or upon what 
information their evidence may rest. His character has long 
been on public torture; and wherever that happens, with either 
a good or a bad man, the impulses to false testimony are nu- 
merous. Sometimes men emerge from the sinks of vice and 
obscurity into patronage and distinction by circulating inte- 
resting tales, as all those of the marvelous kind are. Others, 
from expectations of office and reward, volunteer; while timi- 
dity, in a third class, seeks to guard against the apprehended 
danger, by magnifying trifling stories of alarm. These works 
of exaggeration and propagation are frequently the subjects of 
idle amusement. The authors, until they commit themselves, 
have no just conception of the mischiefs they are hatching; 
but when they are afterwards called to give testimony, perjury 
win not appal them, if it be necessary to save their reputations 
for consistency or veracity. If the evidence be restricted within 
the legal limits, the purest of characters, under accusation of 
treason, will have hazard enough to run. A judge, whose ex- 
perience of these dangers was great, thus speaks on the subject: 
** The rule of rejecting all manner of evidence in criminal pro- 
secutions, that IS foreign to the point in issue, is founded on 
sound sense and common justice. For no man is bound, at the 
peril of life or liberty, fortune or reputation, to answer, at once, 
and unprepared, for every action of his life." Few, even of the 
best of men, would choose to be put to it. And had not those 
concerned in the state prosecutions, put of their zeal for the 
public service, sometimes stepped over this rule in the case 
of treason, it would, perhaps, have been needless to have 
made an express provision against it in that case. Foster's 
C. L. 246. 



k 



92 

Mr. WiCKRAM regretted that so much time had been co»- 
sumed ; but hoped the court would acquit them of any inten- 
tion to waste it. When any illegal motion was introduced by 
the opposite counsel, he «felt it as a serious duty due to his 
client to resist it with firmness* That for his own part he should 
not forget that he was before the circuit court of the United 
States, nor should he so far lose his respect for their discern- 
ment as to bring forward motions, which he believed to be ille- 
gal, only to waste the time of the court; that lie hoped none 
but legsd evidence would be suflfered to be introduced ; none 
but competent witnesses to be heard ; and if this rule was not 
rigidly adhered to, what was to prevent the counsel on the other 
side from producing any and every kind of evidence that they 
pleased? 

It cannot be supposed, said Mr. Wickham, that we are afraid 
of this affidavit. What is in it, which has not been already 
known and scattered in every loose sheet of a newspaper 
throughout the United States? It is not that we resist it in 
point of fact; but on the ground of principle. We wish two 
points to be settled: are affidavits to be read at all on such a 
motion, and at such a crisis of the prosecution as this I and if 
so, ought they to be read if the witnesses themselves were 
present? Would it be right, if they were in the next street or 
the next county? Would it in fact be right if there was time 
enough to produce the ^ viva voce* testimony itself? Mr. Burr 
had a right to be confronted with general Wilkinson. He had 
a right to cVossquestion and examine him on all the state- 
ments which he has made. The government had power to 
bring him here. Why is he not here ? Ought not some satisfac- 
tory excuse to be made for him ? He is an ofl&cer of this go- 
vernment; and the government might have procured his atten- 
dance, as well by a special order as by a civil process. Has any 
subpcena been taken out, inquired Mr« Wickham, addressing 
himself to the clerk ? 

The clerk replied, that no subpoena filled up with general 
Wilkinson's name had issued from his office; but that blank 
subpoenas had been taken out. 

Mr. Wickham. — No one knows, sir. There was time enough 
to have him here. The mail travels from Washington to New- 
Orleans in seventeen days. He might have come; but if he has 
not, why is not some satisfactory excuse brought forward? We 
want, sir, to see this gentleman crossexamined. We want to 
see him confronted with other witnesses. This is one ground 
on which we object to the production of this affidavit. 

Another ground is, that according to the decision of the su- 
""preme court of the United States, this affidavit does not bear 



93 

upon the present motion. Mr; Swartwout, who was said to be 
connected with colonel Burr, was discharged by them, because 
this affidavit did not apply to the charge of treason. Are coun- 
sel then to be suffered to produce testimony on any subject 
that they please? A third objection is, that. general Wilkinson 
does not relate a single act, committed in the district of Vir- 
ginia. In Virginia? no, nor any where else. The attorney for 
die United States says, that he will prove the overt act here- 
after. But, sir, I repeat it, that the rules of evidence apply not 
only to the admissibility of evidence, but to the order in which 
i( is to be produced. Let them first prove an overt act, if they 
can; and then they are at full liberty to prove the colour of it. 

Again, sir, this deposition is not the best evidence which could 
be produced, and which the laws require. General Wilkinson 
speaks of a cyphered letter, and of its contents, as well as he can 
make them out. Now, sir, where is this letter; and where is 
the key to it? Why are they not here? Why are they not pro- 
duced before you? For these reasons, Mr. Wickham hoped, that 
the court would not suffer the affidavit to be read in evidence. 

Mr. HAT.-r-We, shall not, sir, be carried from our course by 
qieecbes, however long or animated they may be. But, sir, per- 
mit me to give those gendemen a litde informadon. Why talk 
of the affidavit before you? Do these gendemen know, that we 
can posidvely prove the astonishment, the regret, and the de- 
nunciation which escaped from Mr. Burr, when he first heard 
of the publication of his cyphered letter! Let them first know 
what we can prove, before they abandon themselves to their 
triumph. General Wilkinson's affidavit is the first in the series 
of our proofs, and it is for this reason that we wish to coiri- 
mcnce with it. * 

Mr* Edmund Randolph. — Sir, we do not know what those 
gentlemen expect to prove; but we do object to the production 
of general Wilkinsons affidavit from what is already known: 
ve know it to be perfecdy inapplicable to the present question. 
Sir, this species of evidence is uirecdy in the face of our bill of 
rights, and of the constitution of the United States. ^^ In all cri- 
** minal prosecutions, the accused shall enjoy the right to a speedy 
^* and public trial, by an impartial jury of the state and district 
^ wherein the crime shall have been committed; which district 
** shall have been previously ascertained by law ; and to be in« 
^ formed of the nature and cause of the accusation; to be con- 
^ fronted with the witnesses against him, &c." Cok>nel Burr, 
then, sir, has a general constitutional right to be confronted with 
the witnesses against him. Let gendemen show any exception 
to it, if they can. And what have they done? Why, they have 
shown here an obBokte,'an evaporated affidavit, for which there 



94 

is no necessity and no lav* The law positively declares, thai the 
best evidence is always to be had; that when a witness is attain- 
able, his affidavit is not to be admitted as testimony. We stand, 
therefore, sir, upon die bill of rights. Gendemen may, indeed, 
attempt to evade its provisions by saying, that they can hereafter 
prove the material act; but I hope that this court will never 
countenance such illegal proceedings. 

The Chief Justice stated^ that the supreme court of the 
United States had already decided, that an affidavit might be 
admitted under certain circumstances; but they had also. deter- 
mined, that general Wilkinson's affidavit did not contain any 
proof of an overt act; that he was certainly extremely willing to 
permit the attorney for the United States to pursue his own 
course in the order of drawing out his evidence, under a full 
Confidence that he would not waste the time of die court by pro- 
ducing any extraneous matter; but where was the necessity of 
producing general Wilkinson's affidavit first f If there was no 
other evidence to prove the overt act, Wilkinson's affidavit goes 
for nothing; for so the supreme court of the United States have 
already decided; and by that decision he should have conceived 
himself bound, even if he had dissented from it. Why then 
produce this affidavit? 

Mr. Hay obser\'ed, that there was a great difference between 
the course prescribed by the court, and the one which he would 
himself have pursued; and that he seriously believed, if he had 
been left to himself, he would at least have satisfied the court 
itself that his own course was the best. That as to general Wil* 
kinson's affidavit, it might even now be confronted with witness 
ses; as Messrs. BoUman and Swartwout were present, and would 
say whether such and such conversations were ever held, as 
are detailed in this affidavit. That he was now before an exa* 
mining court, and not before the petit jury: why then the same 
strictness of evidence now as would be required on the trial in 
chief? That he really believed it was the intention of the oppo- 
site counsel, by dint of long speeches, to attempt to drive him 
into their course: but that they ought to know he never consulted 
the counsel opposed to him; and that they would be the last per- 
sons in the world, whose opinions' he would consult on the pre- 
sent occasion. That he seriously believed, that the evidence which 
he possessed, would, beyond the possibility of a doubt, convince 
the mind of the court, not only of the existence of a traitorous 
design, but of an overt act; and that all that he asked, was die 
liberty of producing this evidence in the order which he thought 
best. Is no part of this deposition, then, admissible? Not a word? 

The Chief Justice observed, that he thought no part of it 
admissible at this time; that general Wilkinson's affidavit either 



,95 

contained proof of the treasonable design, which was no proof 
of the overt act, or it related to conversations, which, however 
strongly they might bear upon those who held them, did not 
bear upon colonel Burr.^ 

Mr. Hat asked, how the court was to be satisfied of the con- 
tents of any paper, before it was read to them. An affidavit 
might contain both die proof of the overt act, and a traitorous 
design. Was such a paper as this to be read under the decision 
of the court? or how was the court to know, whether a paper 
might not contain some proof of the overt act satis&ctory to 
tbem, unless they had an opportunity of inspecting that paper? 

Mr. WicKHAM. — ^These gendemen talk of delay; and yet 
they would produce to thb court whole masses of evidence that 
are perfecdy irrelevant to the present question. They declare 
that they will not pursue our advice; and that we are the last 
persons whom they would take for counsellors. Sir, we do not 
ask them; all that we want is, that they would pursue the strict 
principles of law and legal evidence. One of the best rules of 
evidence is the order of evidence. If a man is charged with a 
crime, must not the deed itself exist before any testimony is 
produced as to the intention with which it is done? I hope that 
no testimony will be suffered to be introduced before the act 
itself shall be produced; and I call upon this court to inforce 
the strict order of evidence. 

Mr. Burr observed, that in point of fact, it was very imma- 
terial to him, whether this affidavit was read or not; that what 
he particularly wanted, was, that the great principles of evidence 
should be laid down, which would be equally applicable to tiiis, 
and to all other affidavits. He consented that the court might 
have this deposition read, if they thought proper. 

Mr. Hat. — This deposition will prove that it was one of 
Aaron Burr's objects to seize upon Mexico. Then, if we can 
prove by some other evidence, that this object was connected 
with an attack upon the United States, is not this deposition of 
material importance in that point of view? If both must be 
proved, does it make any difference which we begin with? If a 
conspiracy has been planned of a misdemeanor and of treason 
so strong^ly combined that they are made to go on together, anc^ 
die accomplishment of the one facilitates the accomplishment of 
the other, is it not of material consequence to prove the misde- 

* The chief justice observed, in a subsequent stage of tbis business, that an 
i6ea had since struck his mind, which he thought it material to state; that he 
had not recollected that these conversations were said to be held by persons 
who were SMd to be authorised by colonel Burr; and of course that their 
ooBversatioDs would bear upon bi\p. 



96 

ineanor? I have npjt myself seen Mr. Taylor, or Mr. Allbrigfat; 
but I am credibly informed, that they will prove an armed as- 
semblage of men on Blannerhasset's island. 

The Chief Justice observed, that if there was no fact, or 
no overt act of treason before the court, the court could have 
nothing to say to the present motion; that if therefore, no fact 
was proved, the court could not grant the motion for the 
prosecution ; that he should be extremely sorry to waste the 
time of the court, and to launch into a variety of irrelevant 
subjects, when there was actually no testimony to prove the 
overt act itself, and thus to give the court a competent jurisdic- 
tion over the case* 

Mr. Hay. — I am bound, sir, to obey the decision of the 
court. However much I may lament that decision, I shall cer* 
tainly acquiesce in their order. If I understand the court — 

The Chief Justice said, that he was of opinion, that unless 
there be a fact to be proved, no testimony ought to be produced. 
The question before the court was not whether there had been 
a treasonable intent, but an overt act. That fact itself must be 
proved, before there can be any treason, or any commitment for 
treason. General Wilkinson's affidavit was, accordingly, put 
aside* 

Mr. Hay then called Peter Taylor, who was Mr. Blanner- 
hasset's gardener, and Jacob Allbright, a labourer, who had 
worked on his island, who gave their testimony. [It is omit* 
ted here, because it will be fully detailed in a subsequent and 
more important part of the report.] After these witnesses had 
been examined, the affidavit of Jacob Dunbaugh was offered, 
which was "taken on the fifteenth of April, 1807, before B. 
Cenas, a justice of the peace," to which was subjoined a certi- 
ficate of governor William C. C. Claiborne, dated *^ at New- 
Orleans, the sixteenth of April, 1807," stating **• that B. Cenas 
was a justice of the peace for the county of New-Orleans." 

To the reading of this affidavit several objections were ta- 
ken by the counsel for colpnel Burr, but those most relied on 
were the following: 1st, That an affidavit could, under no cir- 
cumstances, be read, unless it were shown, that the witness 
tould not be produced, and that the government had not had 
sufficient time to procure the attendance of Jacob Dunbaugh. 
2dly, That though the governor of New-Orleans had certifi- 
ed that B. Cenas was a justice of the peace, yet he had nOt said, 
that it was the same B. Cenas before whom that affidavit was 
taken, ddly, That B. Cenas had not stated in the caption of 
his certificate, or elsewhere, that the affidavit was taken ^^ at 
New-Orlean§," so as to show, that he was acting within hi& 
jurisdiction. 



97 

The argument on these points 'Vas continued to the adjourn* 
mem of the court, who took time to consider the subject till the 
next day. 

Thursday, May 28th, 1807* 

The court met according to adjournment. 
Luther Martin, Esq. appeared as the counsel of colonel 
Burr. 

On the motion made yesterday, to exclude the evidence of 
Jacob Dunbaugh, the Chief Justice delivered the opinion of 
the court as follows: 

On the part of the United States, a paper, purporting to be 
an affidavit,has been offered in evidence, to the reading of which 
two exceptions are takent 

1st, That an affidavit ought not to be admitted, where the 
personal attendance of the witness could have been obtained. 

2dly, That this paper is not so mthenticated as to entitle 
itself to be considered as an affidavit. 

That a magistrate may commit upon affidavits has been de- 
cided in the supreme court of the United States, though not 
without hesitation. The presence of the witness, to be examin- 
ed by the committing justice, confronted with the accused, is 
certainly to be desired ; and ought to be obtained, unless consi- 
derable inconvenience and difficulty exist in procuring his at- 
tendance. An ex parte affidavit, shaped, perhaps, by the per* 
son pressing the prosecution, will always be viewed with some 
suspicion, and acted upon with some caution; but the court 
thought, it would be going too far to reject it altogether. If it 
was obvious, that the attendance of the witness was easily at- 
tainable, but, that he was intentionally kept out of the way, the 
question might be otherwise decided. 

But the particular case before the court does not appear to 
be of this description. The witness resides at a great distance; 
and there is no evidence, that the materiality of his testimony 
was known to the prosecutors or to the executive in time to 
have directed his attendance. It is true, that general instruc- 
iioBs, which would apply to any individual, might have been 
sent, and the attendance of this, or any other material witness, 
obtained under those instructions ; but it would be requiring too 
much, to say, that the omission to do this ought to exclude an 
affidavit. This exception, therefore, will not prevail. 

The second is, that the paper is not so authenticated as to be 
introduced as testimony on a question, which concerns the li- 
berty of a citizen. This objection is founded on two omissions 
in the certificate. 

The first is, that the place at which the affidavit wa^ taken 
does not appear- 
Voi.. I. N 



b 



98 

The second, that the ccrtilitate of the governor does not state 
the person who administered the oath to be a magistrate ; but 
goes no farther than to say, that a person of that name was a 
magistrate. » 

That, for aught appearing to the court, this oath may, or may 
not, in point of fa(?t, have been legally administered must be 
conceded. The place, where the oath was administered, not 
having been stated, it may have been administered where the 
magistrate had no jurisdiction, and yet the certificate be per- 
fectly true. Of consequence, there is no evidence before the 
court, that the magistrate had power to administer the oath» 
and was acting in his judicial capacity. 

The effect of testimony may often be doubtful, and courts 
must exercise their best judgment in the case; but of the verity 
of the paper there ought never to be a doubt. No paper writ- 
ing ought to gain admittance into a court of justice as testimo- 
ny, unless it possesses those solemnities which the law re« 
quires. Its authentication must not rest upon probability, but 
must be as complete as the nature of the case admits of: this 
is believed to be a clear legal principle. In conformity with it 
is, as the court conceives, the practice of England and of this 
country, as is attested by the books of forms ; and no case 
is recollected, in which a contrary principle has been recognis- 
ed. This principle is, in some degree, illustrated by the doc- 
trine with respect to all courts of limited jurisdiction. Their 
proceedings are erroneous, if their jurisdiction be not conclu- 
sively shown. They derive no validity from the strongest pro- 
bability that they had jurisdiction in the case: none, certainly^ 
from the presumption, that being a court, an usurpation of juris- 
diction will not be presumed. The reasoning applies in full 
force, to the actings of a magistrate, whose jurisdiction is lo- 
cal. Thus, in the case of a warrant, it is expressly declared, 
that the place where it was made ought to appear. 

The attempt to remedy this defect, by comparing the date 
of the certificate given by the magistrate with that given by 
the governor cannot succeed. The answer given at bar to this 
argument, is conclusive: the certificate wants those circum* 
stances, which would make it testimony; and without them ne 
part of it can be regarded. 

The second objection is equally fatal. The governor has 
certified, that a man of the same name with the person who 
has administered the oath is a magistrate ; but not, that the 
person, who has administered it, is a magistrate. 

It is too obvious to be controverted that there may be two, or 
more persons of the same name, and, consequently, to produce 
that certaint}', which the case readily admits of, the certificate 
of the governor ought to have applied to the individual, who 



99 

administered d&e oath. The propriety of this certainty and 
precision in a certificate, which is to authenticate any affidavit 
to be introduced into a court of justice, is so generally admits 
ted, that I do not recollect a single instance in which the prin- 
ciple has been departed from* It has been said» that it ought 
to appear that there are two persons of the same name, or the 
court will not presume such to be die fact. The court presumes 
nothing. It may or may not be the fact, and the court cannot 
presume that it is not. The argument proceeds upon the idea, 
that an instrument is to be disproved by him who objects to it, 
and not that it is to be proved by him who offers it. Nothing 
can be more repugnant to die establishtrd usage of courts* 
How is it to be proved, that there are two persons of the name 
of Cenas in the territory of Orleans ? If, with a knowledge of 
several weeks, perhaps months^ that this prosecution was to be 
carried on, the executive ought not to be required to produce 
this witness,ought the prisoner to be required, with the notice 
of a few hours, to prove that two persons of the same name re- 
side in New-Orleans ? 

It has been repeatedly urged, that a difference exists between 
the strictness of law, which would be applicable to a trial in 
chief, and that which is applicable to a motion to commit for 
triaL Of the reality of this distinction, the present controversy 
affords conclusive proof. At a trial in chief, the accused pos- 
sesses the valuable privilege of being confronted with his accu- 
ser. But there must be some limit to this relaxation, and it ap- 
pears not to have extended so far as to the admission of a pa- 
per not purporting to be an affidavit, and not shown to be one. 

When it is asked, whether every man does not believe that 
this affidavit was really taken before a magistrate? it is at once 
answered, that this cannot affect the case. Should a man of 
probity declare a certain fact within his own knowledge, he 
would be credited by all who knew him ; but his declaration 
could not be received as testimony by the judge who firmly 
believed him. So a man might be believed to be guilty of a 
crime, but a jury could not convict him, unless the testimony 
proved him to be guilty of it. This judicial disbelief of a pro- 
bable circumstance does not establish a wide interval between 
common law and common sense. It is believed in this respect 
to show their intimate union. 

The argument goes to this, that the paper shall be received 
and acted upon as an affidavit, not because the oath appears to 
have been administered according to law, but because it is pro- 
bable that it was so administered. 

This point seems to have been decided by the constitution : 
** The right of the people" says that instrument, **• to be se- 
cure in their persons, houses, papers, and effects, against un- 






C^£\A Clk-M^ 



100 

reasonable searches tod seizures^ shall not be violated ; and no 
warrants shall issue but upon probable cause, supported by 
oath or affirmation, and particularly describing the places to 
be searched, and the persons or things be seized." The cause 
of seizure is not to be supported by a probable oath^ or an oath 
that was probably taken, but by oath absolutely taken. This 
oath must be a legal oath; and if it must be a legal oath, it 
must legally appear to the court to be so. This provision is 
not made for a final trial: it is made for the very case now 
under consideration. In the cool and temperate moments of 
reflection, undisturbed by that whirlwind of passion with 
which in those party conflicts which most generally produce 
acts or accusations of treason the human judgment is some* 
times overthrown, the people of America have believed the 
power even of commitment to be capable of too much oppres* 
sion in its execution, to be placed, without restriction, even in 
the hands of the national legislature. Shall a judge disregard 
those harriers which the nation has deemed it proper to erect? 

The interest which the people have in this prosecution, has 
been stated; but it is firmly believed, that the best and true in- 
terest of the people is to be found in a rig^d adhertnce to those 
rules, which preserve the fairness of criminal prosecutions in 
every stage. 

If this was a case to be decided by principle alone, the court 
would certainly not receive this paper; but if the point is set- 
tied by decision, it must be conformed to. 

It has been said to be settled in the supreme court of the 
United States by admitting the affidavit of Wilkinson, to 
which an exception was taken, because it did not appear that 
'the magistrate had taken the oaths prescribed by law. It was 
said, that as by law he could not act, until he had taken the 
oaths, and he was found acting, it must be presumed that this 
prerequisite was complied with; that is, that his acting as a 
magistrate under his commission was evidence that he was 
authorised so to act* It will not be denied that there is much 
strength in the argument; but the cases do not appear to be 
precisely parallel. 

7'he certificate that he is a magistrate, and that full faith is 
due to his acts, implies, that he has qualified, if his qualification 
is necessary to his being a complete magistrate, whose acts are 
entitled to full faith and credit. 

It is not usual for a particular certificate, that a magistrate 
has qualified, to accompany his official acts. 

There is no record of his qualification, and no particular tcs- 
timohial of it could be obtained. 

These observations do not apply to the objections which 



101 

tsisU But it is said that the certificate is the same with that in 
Wilkinson's affidavit. 

If this objection had been taken and overruled, it would 
have ended the question; but it was not taken, so far as is now 
recollected, and does not appear to have been noticed by the 
court. It is not recollected by the judge who sat on that oc- 
casion to have been noticed. A defect, if it be one, which 
was not observed, cannot be cured by being passed over in 
silence. 

The case in Washington was a civil case, and turned upon 
the point, that no form of the commission was prescribed, and 
consequently, that it was not necessary to appear on the face of 
it that it was directed to magistrates. 

That it was the duty of the clerk to direct it to magistrates, 
and he should not be presumed to have neglected his duty, in 
a case in which his performance of it need not appear on the 
face of the instrument. 

That the person, intending to take this exception, ought to 
have taken it sooner, and not surprise the opposite party when 
it was too late to correct it. 

But the great difference is, that the privy examination was a 
mere ministerial act: the administering an oath is a judicial 
act. The court is of opinion that the paper, purporting to be an 
affidavit made by Dunbaugh, cannot be read, because it does 
not appear to be an oath. 

Mr. Hat observed, that as the examination of colonel Burr 
for treason had already taken up much time without any pro- 
gress in the business, and, from the disposition manifested by 
his counsel, it might last not only ten days, but even ten years 
longer, he considered it his duty, from information which he 
had received that morning, to suggest to the court the pro- 
priety of binding colonel Burr in a further recognisance from 
day to day, till the examination could be ended. He stated, on 
the authority of a letter just come to hand from the secretary 
at war, that general Wilkinson, with several other witnesses, 
might be expected here between the 28th and 30th of this 
'month. This circumstance, said he, renders it essential that he 
should be considered in custody, until he gives security that 
his person shall be forthcoming to answer the charge of treason 
against the United States. The gentlemen, who appear as 
counsel for colonel Burr, maybe, and no doubt are, sincere in 
the opinion they have expressed, that he will not shrink from 
the charges exhibited against him, and will not, in any con- 
juncture of circumstances which may occur, fly from a trial; 
but those gentlemen must pardon me for saying, that I enter- 
tain a very different opinion. I must believe, that his regard 



102 

for the safety of his own life, would, if he perceived it in dan- 
ger, prevail over his regard for the interest of his securities. I 
give notice therefore, diat I consider him as being already in 
custody to answer the motion I have made for his commit- 
ment, and that he cannot be permitted to go at large without 
giving security for his appearance from day to day. His situ* 
ation now is the same as that when he was first apprehended 
and brought before a single judge for the purpose of ezamina« 
tion. Your honour at that time considered him as in custody, 
and bound him over from day to day; and I only contend} that 
the same course should be pursued at this time. 

Mr. WiCKHAM.— ^The gentleman thinks he has obtained the 
effect of his motion, merely by having made it. I cannot per^^ 
ceive the propriety of a motion to compel colonel Burr to give 
bail in any sum, before the probable cause to believe him guilty 
of treason has been shown. When he was brought before your 
honour for examination, you conceived the sum of 5000 dol* 
lars sufficient securi^r for his daily appearance. But a recog- 
nisance has already been given in double that sum, binding 
him not to depart without the leave of this c^urt. Yet now, al» 
though no probable proof of treason has been exhibited, Mr* 
Hay requires the court to demand of colonel Burr addidoniA 
security ! I trust that such a motion will not prevail. 

Mr. M ARTiN.-.*It has been already decided, by the supreme 
court of the United States, that not a single expression in Wil« 
kinson's affidavit amounts to any proof of the charge of treason* 
The motion of the gentleman amounts to this: *^ We have 
no evidence of treason, and are not ready to go to trial for 
the purpose of previag it; we therefore move the court to in- 
crease the bail." , ., 

Mr. Randolph.— The first motion of the counsel for the 
United States was to commit colonel Burr on the ground of 
probable cause only. This goes a step farther, and wishes the 
same thing to be done on the ground of a probable cause of a 
probable cause; but we trust that we shall not be deprived of 
our liberty, or held to bail on a mere uncertain expectation of 
evidence. 

Mr. Mac Rae. — The gentlemen seem to consider the re- 
cognisance already taken as sufficient for all circumstances, 
and that colonel Burr will comply with it at any rate ; but we 
have not the same expectation that he will appear, in case he 
discovers that sufficient evidence for his conviction has been 
obtained. When they speak of the sum in which he was bound 
on a former occasion, diey do not recollect the circumstances 



103 

whidi induced dte judge to take bail in so smsfl a sun; it vrzk 
expressly mentioned by your honour, that his having been brought 
to a place at a distance from the circle of his friends, and the na* 
tore of the offence, (a misdemeanor only) induced you to hold 
him to bail in that sum ; and the charge of treason was altogether 
excluded from view in taking the recognisance. 

Mr. Wirt.— Mr. Wickham, in saying that my friend Mr. 
Hay thought he had obtained the object of his motion merely 
by having made it, clearly misconceived the object of the motion 
now before the court. The motion we made yesterday was to 
commit colonel Burr on a charge of treason : our motion to 
day is to hold him in custody to abide the opinion which the 
court may pronounce upon the question of commitment. The 
gendemen say, that we have secured the object we have in view- 
fay the recognisance already taken. The court expressly excluded 
die charge of treason from that recognisance, which applies only 
to the misdemeanor. Let us suppose that the motion to com-* 
mit colonel Burr was made out of court before a single magis* 
trate : if the examination of witnessess in support of the motion 
occupied more than one day, would the magistrate let him go at 
large, while it was depending? Would he not rather, either have 
Inm retained in custody, or take security for his appearance, and 
renew it every evening until the motion should be determined i 
This is all that we ask of the court to do. The recognisance 
which has been given applies to the misdemeanor only. If there- 
fcre it should be forfeited by his going away, we should have 
had no security for his answering the charge of treason; a much 
more enormous offence, and attended widi a very different pu- 
nishment. We contend therefore that additional security ought 
tabc taken. 

Mr. Bcmls. — I shall endeavour to place this subject in some 
measure in a new light It has been said, that the former exa- 
mination of colonel Burr did not preclude this motion ; if so, 
every new edition of the volume of evidence would justify a re- 
newal of the motion to denjand additional bail. Thus motions 
mig^t be heaped upon motions, and bail upon bail, until the per- 
petual imprisonment of the accused might be the consequence. 

It was a practice, in former times, to drown a person accused 
of being a witch, in order to try her. I think that practice is re- 
newed on the present occasion, in another shape; a motion is 
made to commit colonel Burr tor treason, before the evidence 
can be gone through by which alone it can be ascertained that 
he ought to be committed. The court are requested to prede- 
termine the effect of the evidence, and commit, before they 
have decided whether they ought to commit: besides, no warrant 
has been issued against colonel Burr on the present occasion; 



104 

Jhe has not been arrested for treason, and therefore cannot be 
considered as in custody for that offence. 

Mr. Hay then made some farther observations on the impor* 
tance of the charge of treason (which is of the highest nature, 
involving the reputation and life of the prisoner,) and the great 
necessity therefore of the most ample security to compel his ap- 
peafance to answer it. He stated that this examination might last 
many days; that after the court had made up an opimon that 
colonel Burr ought to be committed, he might march off and 
leave the court to pronounce it; so that an order to commit 
might be made by the court, and no person found on whom it 
could be executed. Such an event, he said, would excite the 
laughter and scorn of all the people of the United States. He 
mentioned that an immense expense had been incurred by the go- 
vernment in collecting witnesses, and preparing for this trial; that 
therefore he did not wish the whole of that expense to be thrown 
away. General Wilkinson is expected to arrive between the 28th 
and 30th of this month : if he arrives, both the bills of indictment 
will be immediately sent to the grand jury. This is the first in* 
stance in which the ministers of the law have been requested to 
say to the accused, ^^ You may do as you please, and go at large 
until we pronounce sentence." The gentlemen contend for new 
principles in favour of colonel Burr; but, I trust that greater 
privileges will not be granted to him than to the humblest delu- 
ded victim of his ambition. The circumstance that he has al- 
ready entered into a recognisance to answer for a misdemeanor, 
is no argument to exempt him from entering into another on a 
charge of treason. Shall the accused clear himself of a respon- 
sibility for one crime by his having committed or being charged 
with another ? This would indeed be to violate that maxim of 
law, that no man shall be benefited by his own wrong. Mr. 
Botts has contended that there is a difference between the case on 
the examination and that now before the court; that in the first 
instance a warrant had been issued, but none in the present; but 
a warrant is certainly unnecessary, now that the prisoner is before 
the court. The object of a warrant is to bring him before you. 
When this has been done, it is functus officio; here is colonel Burr, 
before the court. It is therefore immaterial how he came before 
it; but he ought to be considered in custody, until discharged 
by the due course of law. 

The Chief Justice delivered the opinion of the court, the 
substance of which was as follows: It is certainly necessary that 
a person accused should be retained in custody, or required to 
give security for his appearance while his examination is depend- 
ing. The amount of the security to be required, must depend, 
however, upon the weight of the testimony against him. On a 
former occasion, colonel Burr was held to bail for his daily ap- 



105 

pearance in the sum 6( five thousand dollars only, because there 
was no evidence before the judge to prove the probability of his 
having been guilty of treason. When the examination was com- 
pleted, the sum of ten thousand dollars was considered suffi- 
cient to bind him to answer the charge of a misdemeanor only, 
because the constitution requires that excessive bail should not 
be taken; but that recognisance had no application to the charge 
of treason. Yet, whether additional security ought to be requi- 
red in the present stage of this business, before any evidence has 
appeared to make the charge of treason probable, is a question 
of some difficulty. It would seem, that evidence sufficient to 
furnish probable cause must first be examined, before the accu- 
sed can be deprived of hiis liberty, or any security can be requi- 
red of him. Yet, before this could be done, he might escape and 
defeat the very end of the examination. In common cases, where 
a person charged with a crime is arrested and brought before a 
magistrate, the arrest itself is preceded by an affidavit, ^ich 
furnishes grounds of probable cause. The prisoner therefore is 
continued in custody, or bailed until the examination is finished: 
but here there has been no arrest for treason, and colonel Burr. 
is not in custody for that offence. The evidence then must be 
heard to determine whether he ought to be taken into custody; 
but as the present public and solemn exaniination is very differ- 
ent from that before a single magistrate; as very improper effects 
on the public mind may be produced by it; I wish, that the 
court could be relieved from the emban'assing situation in 
which it is placed, and exempted from the necessity of giving 
any opinion upon the case, previously to its being acted upon by 
the grand jury. It is the wish of the court, that the personal ap- 
pearance of colonel Burr could be secured without the necessity 
of proceeding in this inquiry. 

Colonel Burr rose, and observed, that he denied the right of 
the court to hold him to bail in this stage of the proceedings; 
that the oonstitution of the United States was against it; decla- 
ring that no person shall be arrested without probable cause made 
out by oath or affirmation. But if the court were embarrassed, 
be would relieve them by consenting to give bail; provided it 
should be understood, that no opinion on the question even of 
ppobaUe cause was pronounced by the court, by the circum- 
tance of his giving bail. 

TheCniEF Justice said,that such was the meaning of the court. 

Mr. Martin said, for his part, he should prefer that all the 
evidence should be fully gone into» Instead of fearing that pub- 
lic prejudice woi^d thereby be excited against colonel Burr, he 
bdiev^ it would remove all the prejudices of that sort which 
aow prevailed. 

Vol. I. O 



106 

Hie Chief Justice. — As a bill will probably be sent up to the 
grand jur}', the court wishes to declare no opinion either way. 

Some conversation then occurred relative to the quantum of 
bail ; and colonel Burr mentioned, that he would propose that 
the sum should be ten thousand dollars, if he should be able to 
find security to that amount, of which he expressed himself to 
be doubtful. Mr. Hay contended, that fifty thousand dollars 
would not be too much. But the court finally accepted of the 
offer made by colonel Burr ; who after a short interval, entered 
into a recognisance with four securities, to wit, Messrs. Wm* 
Langburn, Thomas Ta}lor, John G. Gamble, and Luther Mar- 
tin ; himself in the sum of ten thousand dollars, and each secu- 
rity in the sum of two thousand five hundred dollars, condition- 
eel, that he would not depart without leave of the court. 

Mr. 'Martin, when offered as security for colonel Burr,said, 
that^e had lands in the district of Virginia, the value of which 
was more than double the sum ; and that he was happy to have 
this opportunity to give a public proof of his confidence in the 
honour of colonel Burr, and of his conviction that he was inno- 
cent. 

All funher proceedings in the case were thereupon postpone 
ed, until the next day. 

Friday, May 29th, 1807. 

The court met, but as the witnesses had not arrived, it was 
adjourned till Monday next, at 10 o'clock. 

Monday, June 1st, I80r. 

The court met according to adjournment. Present, the Chief 
Justice and judge Griffin. 

The grand jury having been called over, Mr. Hay ob- 
served, that he felt great embarrassment and difficulty as to 
the course which ought to be pursued; he had confidently' 
expected the arrival of general Wilkinson, and was disap- 
pointed. He was, therefore, unwilling to subject the grand 
jury to the inconvenience of farther attendance: but bethought 
It proper to inform the court, that he had this morning received 
a number of affidavits of witnesses, residing in the neighbour* 
hood of ChiUicothe, and of Blannerhasset's island, which bore 
ditectly upon the charge of treason against colonel Burr. 
Those affidavits, however, had been taken in such a manner^ 
that, according to the opinion lately given by the court, con- 
cerning the affidavit of Jacob Dunbaugh, they were not admis* 
sible as evidence, and would not be permitted to be read. He 
expected to hear from general Wilkinson, (if he should not ap- 
pear in person) by the Lynchburgh mail, which he understood 



107 

would arrive on Wednesday morning. He, therefore, hoped, 
that the grand jury would not be unwilling to make a farther 
sacrifice of a portion of their time for the public good, and 
would consent to wait with patience. 

The grand jury were adjourned until Tuesday, ten o'clock. 

Tuesday, June 2d, 1807. 

General Wilkinson not having arrived, no business was done 
to-day, but the court adjourned till to-morrow morning, ten 
•'dock. 

Wednesday, June 3d, 180r. 

The court met according to adjournment. 

The same judges present as yesterday. 

The names of the grand jury being called over, they retired 
to their chamber. A few minutes after, the attorney for 
the United States entered, and observed, that he had a propo- 
sition to submit to the court, which he wished the grand jury to 
hear. He requested, therefore, that they might be called in. 

Counsel for Mr. Burr. We have no objection. 
The chief justice directed the marshal to call the jury into 
court. 

Some minutes intervened before they appeared. In the mean 
time, Mr. Hay informed the court, that he only wished to know 
fix>m the grand jury, at what time it would be most convenient 
for them to attend the court, if they were adjourned to some 
distant day, should such an adjournment equally suit the ar- 
rangements of the opposite counsel; that he had just made a 
calculation with his friend the marshal, which satisfied him that 
general Wilkinson had not, perhaps, sufficient time to reach 
diis city. The distance from New-Orleans, on the map, was 
about 1370 miles; if he came by land, he must travel on horse- 
hack ; but judging him by himself, he could not probably ride 
more than thirty miles per day: by these data he would require 
about forty-five days (besides a fragment of a few miles) to 
travel from New-Orleans to this citv. This calculation would 
bring him to the 14th or 15th of this month. He was, there- 
fore, willing, if it suited the wishes of the opposite counsel, to 
have the grand jury adjourned for about ten days ; that gene- 
ral Wilkinson's situation called upon the court to make this ar- 
rangement; he need not expatiate upon the importance of his 
oficial duties, nor the perilous condition of that part of the 
country, where the head of the army ought always to be present ; 
that general Wilkinson should be detained here as short a time as 
possible; and, that it would be particularly inconvenient for him 
10 stay here imtil the meeting of an intermediate court for the 



108 

preseiit trial; diat it was, therefore, the interest of the United 
States to have the trial concluded during the present term i and, 
that he had no doubt the veiy same considerations would lead 
every member of the grand jury, cheerfully to submit to any 
private inconvenience which they might sustain, but punctually 
to return at the time appointed by the court* 

The Chief Justice observed, that there could be no diffi- 
culty on the part of the court. 

Mr. Hat. — General Wilkinson's situation, as commander in 
chief of the forces of the United States, is a very delicate one. 
His official duties may require him to return immediately after 
his arrival at this place. Our a&irs in that part of the union 
are also in a very imsetded state. If he should be compelled 
to return after the adjournment of the court, it may not be in 
his power to be here either at a special court, or at the next 
term. He hoped that the proposition to adjourn the grand jury 
to a distant day would meet with the approbation of colonel 
Burr and his counsel. 

Mr. WiCKHAM owned, that this communication somewhat 
surprised him, as Mr. Hay had, but a few days before, an- 
nounced to the court, from a letter of the secretary of war, that 
general Wilkinson would be here between the 28th' or dOth of 
of May. 

Mr. Hay observed, that the letter from general Dearborn 
admitted of an easy explanation: that according to Mr. Min- 
nikin's affidavit, the express could not have reached New-Or- 
leans before the 3d or 4th of May, and that this exceeded the 
time which general Dearborn had allowed. His opinion was 
founded on the circumstance of the messenger leaving Wash- 
ington on a certain day, and of course his reaching New-Or? 
leans on a certain day. That Mr. Minnikin's affidavit had shown 
the calculation to be not altogether correct; that Mr. Minnikia 
had, therefore, given him some information, which gene- 
ral Dearborn could not have possessed. Mr, Hay was sorry- 
he could not inform the court hoiy general Wilkinson tra- 
velled, and of course how to make any calculation about the 
time of his arrival. 

The Chief Justice said, that before the grand jury came in, 
he could not but express his regret at the great inconvenience 
which they were likely to sustain ; but he believed, that less of 
it would arise from the course pointed out by the United States* 
attorney than from any other. The court would continue to 
sit as usual ; its ordinary business would go on; and no further 
steps would be taken in the prosecution, until the return of the 



109 

grand jury* The couit would observe^ that it seemed desirable, 
in every point of view, that this business should be closed du« 
ring the present term ; that a number of witnesses were now pre- 
sent, all of whom would not probably attend at any other term, 
and that it would be more convenient for the court itself to 
wait a fortnight longer after its usual period of adjournment, 
than to hold an intermediate court for this purpose. 

Mr. WiCKHAM had no doubt himself, that if general WiU 
kinson had intended to have come at all, he would have been 
here before this time; certainly the government had not failed in 
its duty in taking every necessary measure to have him here. If 
the grand jury was adjourned to some distant day, the great dif- 
ficulQr would be to collect them all again at the end of the time 
appointed; and that if general Wilkinson was to coiae at all, he 
may be expected here every day; and that of course, it was bet- 
ter to adjourn the grand jury only from day tg day. 

Mr. Hat stated, that a large allowance ought to be made for 
the distance and uncertainty of the journey; and that he should 
remind the court of a corresponding fact. Mr. Perkins, who es- 
corted colonel Burr, left Fort Stoddert about the 23d or 24th 
of March; but he himself did not reach this city before the thirty- 
third or thir^-sixth day. Now, Mr. Perkins certainly travelled 
with greater advantages than general Wilkinson would; as he 
pressed or purchased horses to expedite his journey. Admit, 
then, Mr. Perkins used due diligence, (and ne has been even 
charged with too much) how can general Wilkinson be cer- 
twnly expected? Gentlemen ought not to be so confident in their 
hopes. General Wilkinson will be here, as sure as he is a living 
man. Nothing but death will prevent him. 

The Chief Justice observed, that a large calculation ought 
certainly to be made ; as the distance was very considerable, and 
it was very uncertain when general Wilkinson set out, or how he 
travelled. 

At this moment, the grand jury returned into court. 

Mr. Hat addressed them in the following terms: 

Gentlemen of the Grand Jury, — I have already stated to the 
court and the opposite counsel, that this business should be con- 
duded, if possible, during your present session. I have moved 
the court, that you be c^ed again at the end of ten days, or a 
fortnight. My calculation is, that general Wilkinson cannot be 
here before the 14th or 15th of this month. I am sorry to detain 
you here a single moment; but I flatter myself, that you will still/ 
continue to display the same praise-worthy patience which has 
hidierto marked your conduct I am, therefore, anxious to con- 
anh your ovm convenience as much as possible; and I wish to 



110 

know, at what time it will be mostconvetiient for you to return 
to this place, if you are acljoumed to a distant day* 

Mn John Randolph, (the foreman). Any time, may it please 
the court, shall be most convenient to ourselves, that is most 
convenient to the court and the parties. We should, however, 
prefer a distant day. 

Mr. Burr observed, that there were manifest inconveniences 
in the measure proposed. He had, for instance, a number of wit- 
nesses here, from a distance; would it not be inconvenient for 
them to be kept here? Certainly, however, they may b*; detain- 
ed; but why an adjournment to a distant day? Mr. Wilkinson 
may be expected here every day. The attorney's estimate of the 
time is not perhaps correct. Perkins came about the same dis- 
tance as Mr. Wilkinson is to come; but he performed his jour- 
ney in thirty-one days. What we want, however, is some data 
from the government on this subject; such, for instance, as the 
time when the express left Washington. As to Minnikin^s affi- 
davit, what great reliance can be placed in it? Did he certainly 
identify the express? But suppose that the express reached New- 
Orleans about the time mentioned; Mr. Wilkinson may come by 
water, and is to be expected here every day. Mn Burr hoped 
that this measure would not be adopted; particularly as it was 
uncertain, whether eight or ten days hence all of the grand jury 
would meet here again. Mr. Wilkinson may be near to this 
place at this moment; and he may arrive almost immediately 
after the jury is adjourned. Adjourn them from day to day. 
According to Mr. Dearborn's letter, Mr. Wilkinson ought to 
have been here between the 28th and 30th of May; allowing^ 
however, six days more than he said, Mn Wilkinson may be 
expected here to-morrow. 

Mr. Hat observed, that it was of no sort of importance t6 
him, personally, or officially, to what time the grand jury was 
adjourned; all that he wished was, that the public business 
should go on, and this prosecution closed during the present 
court. Whether general Wilkinson would be here to-morrow, or 
a fortnight hence, he knew not; he merely made the present pro- 
position for the accommodation of the grand jury. If gendement, 
on the other side, choose to object to it, and the court would 
adjourn the jury from day to day, he was satisfied. He had, in 
the early part of April, received a letter from Mr. Rodney, 
stating, that every exertion would be made to have him here: it 
was not probable that the messenger could have arrived in New- 
Orleans, before the 3d or 4th of May. If general Wilkinson 
travelled by land, he would not come so expeditiously as Mr. 
Perkins, because Mr. Perkins had exhausted the frontier parta 
of Georgia of its horses. Such, at least, was Mr. Minnikin'a 
representation. 



Ill 

Mr. Martin submitted to the court, whether it wad not 
better to adjourn the jury from day to day. Any calculation on 
such a subject was uncertain; it was. uncertain whether general 
Wilkinson would travel by land or by water: but if he came by 
land, he might certainly travel further than the gentleman had 
allowed — ^thirty miles a day; nor would he be obliged, to use the 
same horse, as that gentleman had also supposed. As general 
Wilkinson was a military gentleman, he would not be confined 
to thirty miles a day; nor might he deny himself the conve- 
nience of firequent relays of horses. And suppose that he should 
arrive here to-morrow, all the other important witnesses are 
present, and the business might be concluded before the time 
should come to which the grand jury may be adjourned. He 
hoped, therefore, that the court would not adjourn them to a 
distant day. As to himself, he said, he did not wish his own 
utuation to enter into the consideration of the grand jury, or the 
court; that certainly he ought to be on the Eastern Shore, on 
, to attend the court; but that notwithstanding this 
circumstance, he was determined to stay here, so long as he could 
expect to do any service to the gentleman whom he had come 
fo defend* 

Mr. WiCKHAMstated,that if general Wilkinson did not even 
arrive here in two or three days, intelligence at least might be 
obtained within that time, of the period of his arrival. Every 
postirom the north or south might bring the information; every 
person that came by land or water might do so: under such 
circumstances, ought they to be adjourned for ten days, or a 
formight? 

Mr* Randolph, (the foreman).— -It is, sir, almost indifferent to 
the jory, what steps may be taken; they have made no motion 
for their prorogation or their discharge. Their great anxiety is, 
to fulfil their duty. 

The Chief Justice said, that he was fully impressed with 
the patience which the grapd jury had manifested; perhaps Mon* 
day next would be as convenient for them as any other day, to 
reassemble. 

Mr. Hay hoped, that the grand jury would be punctual in 
their attendance, as he sincerely wished to have the business 
closed during this term; and a number of witnesses were pre- 
sent, who cannot all be expected here again. 

Mr. WiCKHAM expressed his opposition to their adjouro- 
mcnt; for although the jury had hitherto exhibited so much pa- 
dence, yet if they retired home, some one might find his domestic 
a&irs in such a situation as to think himself excused froo)^ 
fiirther attendance. 



112 



Chief Justice. Let it then be ondentood, tbit not before 
4 Monday next, three o'clock, will the jury be called again. . 

^ A desultory conversation here ensued between the jury and 

the chief justice, some of the former wishing as distant a time as 
possible. Tuesday was then named; when Mr. Wickham ob« 
served, that if the grand jury preferred Tuesday, he should have 
no objection; although he himself should prefer an earlier day. 

Chief Justice.— -Gendemen of the grand jury, you will at<- 
tend here on Tuesday next, at two o'clock. 



> 



Tuesbay, June 9th, 180/. 

i The court met according to adjournment. Present, the Chief 

Justice of the United States, and Cyrus Griffin, the district 
judge. 

^ It will be recollected, that on Wednesday last, (the 3d inst.) 

I the grand jury were adjourned till this day, at two o'clock. At the 

hour of diree, all the members appeared; their names having 
' been called, 

* Mr. Hay observed, that it was proper for him to inform the 

' court, that he had received no further information respecting 

general Wilkinson, except what was contained in a Norfolk paper, 
(the Public Ledger) received by the mail of this morning; a para- 
^ graph of which stated, that a vessel had arrived there in twen- 

ty-seven days from New-Orleans, and that, at the departure of the 
vessel from the latter place, which must have been about the 1 1th 
of last month, general Wilkinson was still in New-Orleans; and 
nothing was said as to his intention of leaving it. There were 
gendemen on the grand jury just from Norfolk, who would be 
able to state whether the information might be relied on or not. 
He said that he had confidently expected general Wilkinson here 
before this time; but that he might have been led into the mis- 
take by the information of Mr. Minnikin, as to the progress 
which the express had made, when he saw the messenger on his 
way to New-Orleans. It was possible that in the latter part of 
his journey, he might not have been able to move with as much 
rapidity as upon his first setting out; but from a knowledge of 
the fact that general Wilkinson was at New-Orleans at that time^ 
his hopes were much stronger that he would certainly be here. 
The express would go direcdy to him, and he would have no- 
thing to do but to prepare for his journey to this place: he 
wished the subject might be postponed for a few days. For the 
sake of economy, for the sake of that justice which is due to 
the public and to the accused, he hoped that no objection would 
be made to this course. Almost all the witnesses wiere here; 
«^at he was sorry to be forced to make so many apologies to the 
grand jury, who had already manifested so much patience; but 



113 

h« begged them to recollect the extreme importance of the pre- 
sent trial, and diat it would, perhaps, be the last time that they 
were to be placed in this situation* 

The Chief Justice presumed, that the mail from Norfolk 
would not' arrive here until the day after to-morrow. 

Mr. Hay said that it had arrived the day before. 

Mr. Martin. — I have an extract from another Norfolk pa- 
per, one day later than the one quoted by the attorney, which 
conveys in substance, the same information. The ship news, in 
the same paper state, that the Hannah had left New-Orleans 
twenty-seven days before. 

Mr. Hat. — ^These may be different vessels. 

Mr. Martin. — ^The same vessel, sir. 

Mr. Hat. — These vessels may convey some intelligence to 
Washington respecting general Wilkinson, which may conse- 
quendy reach ourselves. 

Mr. Burr. — I hope, sir, it will not be understood, from the ob- 
servations of my friend, Mr. Martin, that I mean to take any part 
in this business. I shall certainly not interfere with the grand 
jury in this stage of the affair. The proposition of the gendeman 
has my cordial concurrence. 

The Chief Justice observed, that if the jury were adjourned 
dD Thursday, some passenger might, .perhaps, arrive in tne next 
Norfcdk mail, with some intelligence about general Wilkinson. 

Mr. Hay presumed, that the jiiry would not probably be want- 
ing before Saturday. 

Mr. Burr hoped the jury would be adjourned for as short a 
time as possible ; at all events, not longer than Thursday. 

Chief Justice. — This is Tuesday; the attorney for the Uni- 
ted States cannot probably expect general Wilkinson before 
Thursday, if he comes by waten 

Mr. Hay knew not how he was to come; if by water, he cer- 
tainly could not be expected before that time ; and if by land, he 
would certainly require one day to recover from the fatigue of 
travelling. 

The Chief Justice then observed to the grand jury, that 
they were adjourned till Thursday, ten o'crock. 

Mr. Burr then addressed the court. There was a proposition 
which he wished to submit to them. In die president s commu- 
nication to congress, he speaks of a letter and other papers which 
be had received from Mr. Wilkinson, under date of 21st of Oc* 
tober. Circumstances had now rendered it ips^terial, that the 

Vol. I. P 



I 



114 

whole of this letter should be produced in court; and further,' it 
has already appeared to the court, in the course of different exa- 
minations, that the government have attempted to iufer certain 
intentions on my part, from certain transactions. It becomes ne- 
cessary, therefore, that these transactions should be accurately 
stated. It was, therefore, material to show, in what circumstances 
I was placed in the Mississippi Territory; and of course, to ob- 
tain certain orders of the army and the navy which were issued 
respecting me. I have seen the order of the navy in print; and 
one of the officers of the navy had assured me, that this transcript 
was correct. The instructions in this order were, to destroy my 
person and my property in descending the Mississippi. Now I 
wish, if possible, to authenticate this statement; and it was for 
this purpose, when I passed through Washington lately, that I 
addressed myself to Mr. Robert Smith. That gentleman seemed 
to admit the propriety of my application, but objected to my 
course. He informed me, thatif I would apply to him througtv 
one of my counsel, there could be no difficulty in granting the 
object of my application. I have since applied in this manner to 
Mr. Smith, but without success. Hence I feel it necessary to re- 
sort to the audiority of this court, to call upon them to issue a 
subpoena to the president of the United States, with a clause, re- 
quiring him to produce certain papers; or in other words, to 
issue the subpoena duces tecum* The attorney for the United 
States will, however, save the time of this court, if he will con- 
sent to produce the letter of the 21st October, with the accom- 
panying papers, and abo authentic orders of the navy and war 
departments. 

Mr. Randolph observed, that he knew not whether, it was ne- 
cessary for him to support colonelBurr's motion: that he had been 
informed by him of his application, through a friend, to Mr. 
Smith, and of Mr. Smith's refusing to grant the application, im- 
kss it were made through one of his counsel : that he had him- 
self, therefore, addressed a letter to Mr. Smith informing Vutk 
of colonel Burr's statement. In answer to this he had received a 
letter, which seemed like a personal communication to himself; 
but as he had not requested him to withhold it from colonel 
Burr, and as it contained information material to him, he had 
shown it to colonel Burr. 

Mr. Randolph regretted that he had not the letter then about 
him; but the substanc^ of it was, that the order which had been, 
alluded to was only for the officer to whom it had been address- 
ed, and was. to be seen only by him. He added, that he had 
written in reply to Mr. Smith, that he never would have applied 
to him for it, but for the two reasons, that it had already appear- 
ed in a Natchez Gazette, and that Mr. Van Ness, the friend of 
colonel Burr, had informed him of Mr. Smith's unconditional 
promise to furnish the order, if he was properly applied to for it. 



115 

Mr. Burr observed, that to avoid all possible misconception, 
he thought it proper to state, diat Mr» Van Ness had assured 
him of Mr. Smith's positive and unqualified promise to furnish 
the answer, if applied for through counsel. 

Mr. Hat declared that he knew not for what this information 
could be wanted; to what purpose such evidence could relate, 
and whether it was to be used on a motion for commitment, or 
on the trial in chief. 

Mr. Burr, Mr. Wickham, and Mr. Martin observed, that 
perhaps on both: according as circumstances might require. 

Mr. Hay. — I suppose this court will not proceed but upon 
facts. Now, a letter of the 21st of October is spoken of ; but has 
this letter been yet identified? He hoped that the court would 
not issue the subpoena duces tecumi until they were satisfied that 
they had the authority to issue it, and that the information re- 
quired was material in the present case. 

Mr. Wickham observed, that the present was simply intend- 
ed as a notice of a motion to be brought before the court; which 
motion might be discussed either to day or to-morrow. 

Mr. Hay declared, that all delay was unnecessary; but he 
pledged himself, if possible, to obtain the papers which were 
wanted; and not only those, but every paper which might be ne- 
cessary to the elucidation of the case. 

Chief Justice observed, that all delay wasv obviously impro- 
per; that if the papers were wanted, they ought to be obtained as 
soon as possible, and not, perhaps, delay the ulterior stages of 
the prosecution. 

Mr. Hay stated, that he had already received a communica- 
tion from Mr. Wickham on this subject, and intended to have 
informed him that he would write for all the papers which were 
wanted, (and he had no doubt he should obtain them) if the 
court judged them material. The fact was^ that he had already in 
his possession Mr. Randolph's correspondence with Mr. Smith, 
VBtd the order from the navy department; but in his own opinion, 
they no more related to the present prosecution than the first pa^ 
ragraph of the first page of the acts of congress. 

Chief Justice inquired whether the^atchez Gazette was 
not in court. 

Mr. Burr. — No, sir, but I have already seen the same order 
in other papers; and have no doubt that almost every person has. 
At Natchez it was a subject of surprise, that such an order had 
ever finmd its way into a public print. 






J 16 

Mr. Hat repeated, that if the gentleman would furnish him 
with a list of such papers as they wanted, he would attempt to 
obtain them, if the court thought them material. Of what use 
were they ? Were they too to be laid before the grand jury, to 
distract their attention, and to present, under another point of 
view, another subject for their consideration ? He had supposed, 
that the mass of matter to be laid before them was large enough 
afready. 

CuiEF Justice observed, that it was impossible to determine 
their use, without hearing them. He would much rather that the 
counsel on both sides should make an arrangement with each 
other suitable to them both ; and that the court itself was not 
now disposed to make any arrangement; but if the parties could 
not come to any agreement, he should then wish to hear some 
argument on the subject to satisfy him, whether the court had 
the right to issue a subpcena duces tecum* 

Mr. Burr observed, that he had been told it was the constant 
practice in this state to issue such subpoenas upon the application 
of a party. 

Chief Justice had no doubt it was the custom to do it, where 
there was no great inconvenience to the party summoned; that it 
seldom occurred; but that he was inclined to think, where great 
inconveniences would result to the party summoned, that the ma- 
teriality of his testimony should be fully shown. If papers are to 
be obtained from a clerk's office, such a subpcsna may be issued^ 
and though not upon affidavit, yet where there has been good 
cause shown* 

Mr. Martin said, that there would be no inconvenience, as 
t]jie president might just transmit the papers wanted by ms^il. 

Mr. Hat observed, that Mr. Martin's remark superseded any 
further proceeding. Why apply to the court to issue a subpcena 
to the president, unless perhaps it was the necessary form for 
obtaining the papers. 

Chief Justice. — The reason is, that in case of a refusal to 
send the papers, the officer himself may be present to show cause. 
This subpoena is issued only where fears of this sort are enter- 
tained. 

Mr. Hat said, that no application had yet been made to the 
secretary of state, for^neral Wilkinson's letter; nor to the depart- 
ment of war, for its order. 

» 

Mr. Martin. — If one department refuses, we may presume 
that the others will. 

Mr. Burr.-— If the gentleman grants our demand, he may pro- 
pose any iteration in its form thathe pleases. 



117 

Mn R ANDOLFH*«-^If any arrangement can be made to obtain 
these papers, we would rather that it should be a voluntary act 
on the part of the government. 

Mr* Hay.— -I will attempt to obtain these papers; any, in 
fact, that gentlemen may want, if the court will but say they are 
material. 

Mr. WiGKHAM.— Colonel Burr's counsel know little of the im- 
portance of these papers, but from himself; and from that, they are 
fuUy persuaded of their great importance. The attorney for the 
United States says, that so far as his personal exertions will go, 
he will attempt to obtain them, and firmly believes that his appli- 
cation will be successful. But, sir, at Washington they may en- 
'tertain very different views from himself. Under such circum- 
stances, it is better to encounter the delay of three or four days, 
to obtain the authority of this court, than trust to an expedient, 
which may be unavailing. But I see no necessity for any such de- 
lay, as the order may at once issue, by consent of parties. As to 
the order from the navy department, a copy may be sufficient; 
the original is already gone out. As to Wilkinson's letter, we 
wi^ to see itself here ; and surely it may be trusted in the hands 
of the attorney for the United States. 

Mr. Hay. — It seems then, that the copies of papers from the 
government of the United States will not be received. They are 
not to be trusted. After such an observation, sir, I retract every 
thing that I have promised : let geudemen, sir, take their own 
course. 

Here some warm desultory conversation took place at the bar, 
when, 

Mr. WiCKHAM observed, that as the unfortunate expres- 
sion fell from him, he thought it proper to explain. He had in- 
tended no insinuation against the fairness of the conduct of the 
government : that the distinction he had drawn between an ori- 
ginal and a copy, simply resulted from his anxiety to obtain the 
highest possible degree of evidence; hence he preferred the ori- 
ginal to the copy : that if .Wilkinson was here it would be neces- 
sary to meet him with his own letter; perhaps in no other way. 

Mr. Hay. — That explanation removes the difficulty. 

Mr. WiCKHAM. — We wish to confront him with his own 
letter. 

Mr. Hay.— Perhaps they may not be ab^e to remove the ori- 
ginal, as it is already filed in the department of state. 

Mr. Martin. — We are ready to go on with the discussion. . 

Mr. WicKHAM. — ^The president's message mentioned, that 
this was a letter to himself. 

Mr. Hay. — I hope the court will remember that remark. 
The letter these gendemen then want is addressed to Thomas 
Jcflerson. Have they a right to demand any but pdblic letters 



118 

Mr. Martin. — The president's message ssud^ it was address- 
ed to him as president of the United States. 

Mr. Hat. — If it be a public letter, it is of course deposited in 
ihe department of state. I have no objection, since this insinua- 
tion has been removed, to repeat my promise to apply for these 
papers, if the court thinks them material ; and when the business 
arrives at the proper stage, they may then be produced. I hope 
that no more time will be wasted in these preliminary stages ; and 
that such arrangements may be adopted as will prevent thb use- 
less consumption of time. 

Mr. Randolph had no reason to believe, that there had beed 
more delay on his side, than oh the other; that if time was to be 
consumed at all, more would be employed in removing greater 
difficulties than had already been done; that he, however, only 
hinted at this now. He declared with Mr. Wickham his perfect 
concurrence in this measure. 

r 

Mr. BoTTs. — ^We are unanimous oh this point, I am sure. 
Sir, I cannot sit down, and hear complaints so unnecessarily re« 
peated, about the waste of time. It is time, sir, to be done with 
them. It is time that we should enjoy something like the liberty 
of speech. Mr. Hay makes, I think, about a dozen times as 
many speeches as any odier gentleman; and each speech longer 
than those of other persons; and yet we cannot open our mouths, 
without his sounding loudly his complaints to the ears of this 
hall. On this case of unequal magnitude, shall we not be suffered 
to declare our opinions, without this unnecessary complaint 
about the consumption of the court^s time ? We feel the magm- 
tude o)F our duties, and we shall firmly discharge them in spite 
of Mr. Hay. It is obvious to you, sir, and to every body, that 
the delay is not with us. If, sir, you call for an argument, we 
are ready to proceed : but if you are satisfied, we shsdl be silent. 

Chief Justice. — If the attorney for the United States is satis- 
fied that this court has a right to issue the subpoena duces tecum^ 
I will grant the motion. 

Mr. Hay. — I am not, sir. 

Chief Justice. — I am not prepared to give an opinion on 
this point; and, therefore, I must call for an argument. 

Mr. Hay. — ^When I said that there had been a great con- 
sumption of time, I certainly did not mean to insinuate that thci/ 
only consumed it. I have certainly had my full proportion. I 
thought, however, that my proposition would have saved sonxe 
time; and I am still willing to repeat my promise. 

Mr. Randolph. — That the court may understand us, I ^U 
read to them the form of the subpoena which we wbh to obtain. 
[Here Mr. Randolph read the sketch before him.] 



11^ 

Mr. BoTTs.—- We win be under the direcUon of the court, 
whether we shall proceed in the argument to day or to-morrow. 

Chief Justice. — ^Unquestionably there must be an argument, 
if the attorney forthe United States disputes the authority of the 
court to grant the motion. 

Mr. Hay. — ^Whatever other gentlemen may think on this sub- 
ject, I have not the least doubt that these papers will be pro- 
duced, because Mr. Robert Smith has vokmtarily furnished me 
with the order of the navy department. But aldiough I may pro- 
curej^these papers, let it be distmctly understood, tlut I shall ob- 
ject to their being unnecessarily produced. 

Mr. BoTTs. — It will take four days at least to interchange let- 
ters between this city and Washington, and two or three days to 
copy the papers, so that six days will be totally lost to us. In the 
mean time, thirty of forty witnesses, and sixteen grand jurymen 
(they might, perhaps, require them) would be detained here; 
and sifter all, the attorney's application to the government might 
be unavailing. 

Mr. Hay. — Since then gentlemen, sir, will press this subject, 
I ask no more than that they will waive this discussion tiU to- 
morrow. 

The court was then adjourned till to-morrow, eleven o'clock. 

Wednesday, June 10th, 180r. 

The court met according to adjournment. 

The^subject of the subpoena duces tecum was resumed. 

The following affidavit, drawn up and sworn to by Mr. Burr, 
was read, in support of the motion for the subpoena. 

^ Aaron Burr, maketh oath, that he hath great reasoli to be- 
lieve, that a letter from general Wilkinson to the president of the 
United States, dated 21st October, 1806, as' mentioned in the 
president's message of the 22d January, 1807, to both houses of 
congress, together with the documents accompanying the said 
letter, and copy of the answer of said Thomas Jefferson, or of 
any one by his authority, to the said letter, may be material in his 
defence, m the prosecution' against him. And further, that he 
hath reason to believe, the military and naval orders given by 
the president of the United States, through the departments of 
and of the navy, to the officers of the army and navy, at or 
the New-Orleans stations, touching or concerning the said 
Burr, or his property, will also be material in his defence. 

** AARON BURR. 

** Sworn to in open court, l6th June, 1807." 



120 

Mr. Hat begged leave to give notice to the court and the 

f opposite counsel, that in conformity to the information which 

he had yesterday given, he had addressed a letter to the pre* 
sident, stating the motion that was to be made this day, and 
suggesting the propriety of sending on the papers required; 
but reserving to himself the right of retaining them, till the 

^ court saw them, and determined their materiality. He hoped 

to have them in his possession in five days. He should how- ' 
ever- object to the affidavit produced, and to the right of colo- 

I nel Burr to make the motion at the present time. It was a pre- 

liminary question, which he wished first to be determined, 

\ whether any man, standing in colonel Burr's situation, had a 

right to make such a motion. He believed the fact to be, that 

r if these papers should ever come to hand, they would not go 

out of the hands of the court; for he was satisfied,- that they 
could not be material in this case, from the substance of one 
of those very papers, which was already in his possession. He 
wished not to waste the time of the court ; but there were se- 
veral preliminary points, which he should be obliged to sub- 
mit to their consideration ; and before the discussion could be 
ended, the papers would be here. He confessed himself ex- 
tremely unwilling to enter into any discussion on these papers. 
Gentlemen might take it for granted if they pleased, that he 
felt a disinclination to furnish them with these papers; but the 
fact was not so.' Gentlemen ought themselves to have applied 
for them; for he was satisfied, from the character of the govern- 
ment, that every necessary paper would have been cheerfully 
supplied. He had no doubt the court, and even the opposing 
counsel, would acquiesce in the same opinion. He trusted that 
the present motion was not made to show the talents of gen- 
tlemen; he assured them that if general Wilkinson should 
come, they would have a splendid opportunity of displaying 
them, to their hearts' content. He requested them once more 
to deliberate on his propositions. 

Mr. Martin assured the gentleman, that there was no 
need for further deliberation; that it was strange, that the gen- 
tleman should complain so much of the consumption of time, 
at the very moment when he spoke of -the long period he 
should require for this discussion, and the many preliminary 
points which he had to submit. The gentleman too had spoken 
warmly of certain impressions and opinions, and even of our 
own; but he trusted, that the gentleman would leave it to 
themselves to declare their own impressions: that it was im. 
possible for him to search their hearts, and that he was 8u.re, 
that nothing, that had yet fallen from them, justified the eulo- 
gies upon the government, which he had been kind enough to 
attribute to them. 



121 

'i/lr. WiQKKAfJi observed, that Mn Hay had promised the 
appearance of these papers; and that was all they wanted. The 
object was not to bring the president here, but to obtain cer- 
tain papers which he had in his possession. That the effect of 
the process required, was the result promised by Mr. Hay. 
As to the objection, that part of the papers was confidential ; 
would it not be easy to make an indorsement ot such as the 
president would not wish to go out of the court? That, how- 
•▼er, Mr. Hay's promises might be unavailing: at Washington 
they might entertain very different views from him. As to the 
opportunity of displaying talents, nothing would be better cal- 
culated to defeat that object than for the attorney for the 
United States to give his consent that process should issue. 

Mr. Hat had not heard the gentleman distinctly. He 
thought he heard the word ^ consent/^ but he assured him, 
he had not consented, and never would consent to such a pro- 
position. 

Mr. Martin then rose to open the motion ; when some dA 
Sultoiy discussion ensued as to the order of proceeding. 

Mr. Hat contended, that this question was premature ; that 
the preliminary question, whether colonel Burr was entided to 
make this motion, ought first to be settled. If the court pleased, 
he would state the ground on which he denied the existence of 
this right. 

The chief justice having decided, that Mr. Hay might 
state his objections, the latter proceeded to this effect: 

The motion now made by Mr. Burr, as far as he could un- 
derstand it, was to obtain from the court a subpoena to the 
president of the United States, to attend this court with an 
ori^nal letter written to him by general Wilkinson, and re- 
ferred to in his communication to congress, of the 27th Ja^ 
noary, 1807. He contended that it was premature; that colonel 
Burr was not authorised to make it by any legal precedent 
that could be shown, or by any statute in force in this country, 
while be remained in his present situation. What was that si- 
tuation? He had been committed for a misdemeanor and re* 
cognised to appear before this court; in consequence of which 
he was now present. No bills had yet been sent to the grand 
jury. In this situation, colonel Burr applies to this court for a 
compulsory process, or a subpoena duces tecum^ to the presi- 
dent of the United States, commanding him to attend with 
«:ertain papers, and if he does not attend, or the papers are not 
]»oduced, the court may then be applied to, to issue an atiach- 
B&cnt against hint. 

Vol. I. Q 



122 

fiow I contend, said Mr. Hay, that no individual, charged* 
t^ith a crime, has any right to legal process, until the grand 
j.ury have found a true bill, and the prosecutor has announced 
his intention to proceed thereupon. Gentlemen will please to 
point out in the constitution of the United States, in the laws, 
of congress, or in the common law, the smallest right to make 
this motion. They will search in vain.» in the various materials 
and reports of the common law, for a precedent to justify this 
attempt. The acts of congress supply them with no authority; 
and there is nothing in the constitution which relates to the sub- 
ject, exceptthe eighth amendment, which most obviously refers 
to a different stage of the prosecution from this.. '^ In aU criminal 
prosecutions, the accused shall enjoy the right to a speedy and 
public trial, &c. — ^to have compulsory process for obtaining wit- 
nesses in his favour, and to have tht; assistance of counsel for 
his defence." Will gentlemen contend that this clause relates 
to any of the preliminary steps of the prosecution, before the 
prosecution itself is commenced by the finding of the bill? 
This clause was never intended for any of the preliminary 
steps: the arrest, transportation, or examination, of the accused. 
Its object was to secure to every man the benefit of * a fair 
and impartiattrial^^ not on the examination before the examin- 
ing magistrate, but on the trial before the petit jury. When 
the trial commences, it is then that the accused is to be con- 
fronted with the witnesses against him; it is then that he is en-c 
titled to compulsory process for obtaining witnesses in his fa* 
vour; it is then that he is to have counsel for his defence. It is 
true, sir, that in this first stage, (incipient stage as it is called 
in fashionable phrase) Aaron Burr has already not one counsel^. 
But four; and not only counsel in this district, but celebrated 
counsel from other states. It is true also,, that the clerk oi this' 
court has already issued subpoenas ; but these subpsnas were 
gratuitous, and had they been refused, there was no law to 
compel him to grant them. But do all these circumstances 
prove, that Aaron Burr has authority at this stage of the busi- 
ness to make the present application to the court? But let us 
suppose that they have obtained what they require ; that this 
subpoena has issued, and that the president is here; that he has 
been called to this court from Washington, where national con- 
cerns of such deep weight and importance are entrusted to his* 
guidance ; what then?^ 

Mr. WiGKHAM begged leave to interrupt Mr. Hay. It was 
not in fact a subpoena for the president, but only for certaia 
papers, which they required. . 

Mr. Hay. — Even that supposition does not remove the pre- 
maturity of the present motion. I ask what is to be done witLu 



123 

these papers, if brought hither by this subpoena ? If the presi- 
dent were to come here with them in his pocket, I will say 
nothing of the manifest and many inconveniences which his 
absence from the seat of government might occasion, but I 
ask, what would be done with these papers? The gentlemen 
cannot answer this question, /only am competent to answer. 
And whv? Because no kind of use can be made of this evi- 
dence until I have laid my biHs before the grand jury, and un- 
til they have found them to be true. Will gentlemen proceed 
on such calculations; that the bills witi be sent up^ and that 
they will certainly be found to be true bills? If general Wil- 
kinson comes, (and that he will I can entertain no doubt, from 
the intelligence I have heard this morning) the prosecution 
will certainly progress ; and in that case only can these papers 
be wanted. 

There is another little difficulty in this case. When is this 
process to be made returnable ? Some day must be named ; but 
can the court possibly name any day, when the witnesses or 
the papers shall be wanted? Do the records of this court indi- 
cate any particular day when the trial is to commence? Sir, 
such a nomination would be completely arbitrary. Let an in- 
dictment be first found, and a day set for the trial ; and on that 
day this process may be made returnable. But, sir, if a day 
could be fixed, it does not appear that this testimony will be 
wanted during this term. It depends on the arrival of general 
Wilkinson. It literally depends on the winds and the tvaves. 
The very language of the process confirms this argument. 
How coidd the evidence be heard before the accused is put 
upon his trial? Perhaps it maybe said, that this evidence will 
be wanted in case we repeat our motion to commit Aaron 
Burr for high treason, and which we certainly shall attempt, if 
general Wilkinson does not make his appearance. On this 
point, two remarks only are necessary to be made. The first is, 
that no such motion is actually before the court. And the se- 
cond is, that if such motion were made, the court would have 
no right to issue process before the trial. The court has no 
more rights for this purpose than an individual magistrate 
would have ; and in fact it was only a very few days ago, that 
the court did actually consider themselves placed in this vecy 
situation. Now if such an application had been made to your 
honour out of doors, is there any law in America, (or in any 
part of the civilized, world) to justify a postponement of the 
examination until a subpccna has been granted? It is true, that 
evidence on both sides has been sometimes produced; but this 
took place when the evidence happened to be present: but 
there does not exist a single precedent, in all the annals of ju- 

prudence, where the course of an examination (las been sus- 



124 

pended by an application for subpoenas, and the writing for the 
witnesses. The present motion, therefore, is manifestly prema* 
ture. Mr. Hay confessed, that his object was to save time: he 
was confident that the documents would be forwarded in a much 
shorter time than they could possibly obtain them by this pro- 
cess. Why were they not sooner applied for? Though there had 
been some correspondence between Mr. Randolph and Mr. 
Smith, about an order from the navy department, yet never be- 
fore yesterday was the materiality of general Wilkinson's letter 
suggested; although it had been publicly known to exist as long 
ago as' the 27th of January. The accused and his counsel knew 
this, yet they never m^de any attempts to obtain it^ or ever 
stated its materiality. 

Mr. WiCKHAM would not inquire, whether it was the object 
of the gentleman to save or to obtain time; though probably the 
last, as gentlemen seemed very solicitous to send on a messen- 
ger to Washington, to obtain instructions directing them how to 
act; but if the saving of time was an object with die court, the 
course which he recommended was the best calculated to obtain, 
it. It was the shortest way to resort at once to that expedient, 
which must be at last employed, if the expectations of the attorney 
for the United States should turn out to be fallacious, and his 
application at Washington should prove to be unavsuling. The 
clerk himself, if called upon for subpoenas, must issue them 
absolutely. It was the practice, and it was the law; but instead 
of applying to the clerk, they deemed it necessary, in a case of 
such importance, to make their application direcdy to the court. 
They were more willing too to prefer this course, as they did 
not wish the presence of the president, but only of certain pa- 
pers; and it was not therefore their wish to obtain a common 
subpoena for his person, but a subpoena duces tecum for those 
papers. 

I'his is the first time I have heard, since the declaration of 
American Independence, that an accused man is not to obtain 
witnesses in his behalf. What has the gentleman himself done? 
Are there not witnesses present whom he has summoned, under 
the authority of this court, and at his own special instance? And 
will he at last admit, that there is to be no kind of equality be- 
tween the accused and the prosecution; and that we are to 
remain here perfectly mute, and bound hand and foot, to wait 
the decision of his own witnesses? 

But at what time are we to be entitled to these privileges? 
At the period of colonel Burr's transportation? That is a most 
unwarrantable proceeding; there is no such case recognised by 
the constitution ; and therefore there could be nothing in that 
cbnstitution to give us the right of founding any judicial proceed- 
ing on such a. step. But^ sir, such an illegal transaction entitles 



125 

us to 8tiQ oiore; it entitles us to the protection of every citizen 
in the country, as well as of this court* Suppose that colonel 
Burr were now put on his examination; would he not have 
a right to examine any witnesses who were beyond the bar; and 
of course to subpoena every man who would be brought before 
you during the term of examination? This practice is every day 
pursued by judges and magistrates in superior and inferior 
courts. Why not in the present case? 

It has been said, that there is nothing in this country to justify 
such an application; that there are no precedents. But I will 
quote, sir, another trial, which was similar in its proceedings, 
and similar, I trust, in its results. I refer to the cases of 
Smidi and Ogden, before the circuit court of New* York. 
Subpoenas were actually taken out, Isefore the trial, for Messrs* 
Madison and Dearborn; and even the expenses of their travelling 
were tendered to them: but the proceedings did not even stop 
here. For a motion for an attachment was made before the court, 
founded upon the proof of serving these subpoenas, and the proof 
of offered compensation. The argument at length closed on this 
motion for attachment; but no man doubted the right of the 
court to issue subpoenas. The only question was, whether at that 
time, an attachment ought to issue. The court was unanimous 
about the right of subposnas; but on the attachment, they were 
divided: judge Patterson being for it, and judge Talmadge 
against it. 

We are however, asked, sir, for what purpose do we wish to 
procure thb evidence? It is at their option to say, whether bills 
shall be laid before the grand jury or not. Granted, sir; it is in 
the power of the attorney for the United States to send up his 
biDs or not. But should these bills be found true, and the trial 
come on, may we not be ruled to trial instanter^ and without 
the aid of our witnesses? But what was done the other day, 
may hereafter be repeated. Witnesses are introduced on behalf 
of the United States, and others perhaps would have been on 
the motion for commitment. This motion is for the present 
only suspended; but if that be the case, may not the testimony 
now required, be relevant to our defence? The attorney for the 
United States triumphandy declares, that we must do as he 
pleases; and that we know not what he intends to do. That is 
true, sir; but may not we too, do something? May not colonel 
Burr move for his discharge? As he is to remain here until the 
court pleases to discharge him, may he not move for his recog- 
lusance to be discharged? Have we no right also to all the means 
which are necessary for the fair administration of justice? 

•* No time is stipulated for the return of the subpoena." This 
is a great difficulty indeed ! It will be admitted, dien, that the 
court has a right to issue a subpoena; and yet, because there hop* 
pens to be no particular provision about the day, this right must 



126 

b^ necessarily null. But, sir, is this objection really justified by 
practice? Has not the court a right to fix a day for the return of 
the processes of this sort, according to their own convenience, or 
the convenience of parties? 

But why have we not applied for these documents sooner? 
Tes, sir, it ts asked of us, why we have not made this application 
sooner; and yet even now does the gentleman wish to delay iu 
He declared that we have made it too soon; and yet now he de- 
clares that we have made it too late. Now, it cannot be both : 
if it be too late, it certainly cannot be too soon. 

We have heard some remarks upon colonel Burr's privileges: 
and among others, upon the four counsellors who are to defend 
him. But what kind of an argument is this? If we turn to the 
laws of congress, we shaH find, there is one attorney for the 
United States appropriated to each district; and yet there are no 
less than three counsellors employed on the present occasion. 
No doubt there is a law providing for the payment of the two 
others out of the treasury; but with what propriety can these 
gendemen complain of my client making such arrangements as 
may suit his convenience or his interest? But what are all these 
remarks to the subpcena duces tecum ? Sir, it is useless to multi- 
ply arguments on this subject. It is a settled rule, since the an- 
cient times of King John; since the formation of magna charta 
kself, that the accused has a right to subpcena witnesses; and not 
only to any other form, but subpoena duces tecum^ under such 
modifications as the court may please to prescribe. 

Mr. Martin read an extract from the case of Smith and 
Ogden, in New-York, about issuing an attachment. 

Mr. Hat asserted, that this extract did not prove the position 
contended For; that there was no case of a subpoena having issued 
before tht: finding of an indictment; that if the clerk ever had 
issued them, it was a mere voluntaiy unauthorised act. He chal- 
lenged the experienced gentleman from Maryland to cite a 
single instance of an application to a court for subpoenas, before 
the finding of a bill of indictment. 

Mr. Martin replied, thatif there were no precedents on this 
very point, it was because this objection never was made before, 
and he hoped never would be made again. 

Here a desultory conversation ensued; when, 

Mr. Hay observed, that gentlemen affected to believe, that 
Ae present course pursued by the prosecution was dictated by 
a wish to suppress the evidence; that he conjured the gentlemen 
to remember that he had voluntarily applied for the papers which 
they wanted, and had no doubt of obtaining them; and that he 
made these remarks to guard any human being from the suspi- 
)(ion, that there was a disposition to refuse the papers; that he 



127 

ahonld exert himself with no less zeal to obtain the evidence that 
was wanted for colonel Burr, than that which might be produced 
against him* 

The Chief Justice observed, that he would not at present 
deliver any decided opinion upon the point, though he was dis- 
posed to believe, that the accused had a right to apply for sub- 
poenas. He cited the case of a man, who had been some time 
before brought before him and condemned for counterfeiting 
bank notes. In that case the prisoner had attempted to delay the 
trial by pretending that he had witnesses in Baltimore; which plea 
had been rejected by the court, principally on the ground that he 
had not before summoned those witnesses. The chief justice, how- 
ever, observed, that he should not decide this question at pre- 
sent, but reserve it for future decision; in the mean dme, the 
oounsel might proceed with the other part of the argument. 

Some conversation here ensued, between Mr. Botts and Mr^ 
Hat, on the interpretation of an act erf* congress, in which the 
term ^^ accused" was employed. 

Mr. Martin then rose to support the propriety of granting- 
this particular subpoena. He laid down as a general principle, in 
all civil or criminal cases, that every man had a right to process 
to establish his rights or his innocence. Mac Nally's Evidence, 
vol. 1. p. 255. Does there exist a single case in the British au- 
diorities in opposition to this doctrine T Surely these gentlemen 
do not intend to represent the president as a kind of sovereign^ 
or as a king of Great Britain. He is no more than a servant of 
the people. But even the British king may be called upon to 
^ve testimony to his people. It is true, he is not obliged to be 
subpoenaed, and to appear in a court of justice; but his testimony 
under his sign manual is received as authentic evidence. 

Chief Justice. — ^The counsel on the opposite side adn^t, 
that the president may be summoned. 

Mr. Martin. — They have surely never admitted it before. 
However, I am happy that is now admitted; as it will spare me 
a part of my argument. I will proceed then to the others. The 
next question is, whether the president can be summoned to at- 
tend with certain papers. One of them we want is an original 
letter from general Wilkinson, of the 31st October, and received 
by the president on the 27th of November. This letter, as ap- 
pears by colonel Burr's affidavit, is considered by him as neces- 
sary to his defence; and his counsel, so far as they understated 
the subject, are of the same opinion. The other papers are co- 
pics of official orders by the navy and war departments. It may 
t»e said, sir, that if application were made to those departments, 
cokmd Burr had a right to the papers : for we had supposed. 



I2« 

that eveiy citizen was entitled to such copies of official papers 
as are material to him. And I have never heard c^ but one in<» 
stance where they were refused; and this was most certainly un* 
der presidentisd influence. 

Mr. Randolph here enumerated the particulars of his own 
correspondence with Mn Robert Smith, secretary of the navy. 

Mr. Martin proceeded to the following eflPect : I have as- 
serted, that colonel Burr was entitled to a copy of these orders. 
We intended to show, that these orders were contrary to the con- 
stitution and the lawv, and that they entitled colonel Burr to the 
right of resistance. We intended to show, that by this particulate 
order his property and his person were to be destroyed; yes, by 
these tyrannical orders the life and property of an innocent man 
were to be exposed to destruction. We did not expect these ori- 
ginals themselves. But we did apply for copies ; and were refu- 
sed under presidential influence. In New- York, on the farcical 
trials of Ogden and Smith, the ofiieers of the government 
screened themselves from attending, under the sanction of the 
president's name. Perhaps the same farce may be repeated here: 
and it is for this reason that we apply directly to the president of 
the United States. Whether it would have been best to have ap- 
plied to the secretaries of state, of the navy and war, I cannot 
say. All that we want is, the copies of some psmers, and the 
original of another. This is a peculiar case, sir. The president 
has undertaken to prejudge my client by declaring, that ^^ Of his 
guilt there can be no doubt. He has assumed to himself the 
knowledge of the Supreme Being himself, and pretended to 
search the heart of my highly respected friend. He has pro- 
claimed him a traitor in the face of that country, which has re- 
warded him. He has let slip the dogs of war, the hell-hounds of 
persecution, to hunt down my friend. And would this presi- 
dent of the United States, who has raised all this absurd cla* 
mour, pretend to keep back the papers which are wanted for this 
mal, where life itself is at stake? It is a sacred principle, that in 
all such caseS) the accused has a right to all the evidence which i9 
necessary for his defence. And whoever withholds, wilfully, in- 
formation that would save 'the life of a person, charged wiUi a 
capital offence, is substantially a murderer, and so recorded in the 
register of heaven. Can it then be presumed that the president 
would be sorr}' to have colonel Burr's innocence proved ? No, it 
is impossible. Would the president of the United States give 
his enemies (for enemies he has, like other great and good men) 
would he give them the proud opportunity of saying that colo- 
nel Burr is the victim of anger, jealousy, and hatred? Will he 
not act with all possible candour ? When told that certain papers 
are" material to our defence, will he not be proud to say to us, 
^^ Sirs, you may have them ; I will grant you every possible ad^ 



129 

vantage/' Had tlus been doney^e attorney lor die United ^Stirtes 
(and perhaps the executive) never would have said that these pai* 

Cnrs are no more material to us than the first paragraph of the 
ws of congress. These gentlemen forget, that it is not their 
province to decide, whether the evidence is material to us or not. 
It is for the court to say, whether it bears upon the case; and whe* 
ther it is to go before the petit jury, or to come before ^emselves, 
if the motion to commit for treason be continued. 

They seem to think, that we are not even to be trusted with 
these papers. But why do they attribute motives to colonel 
Burr's counsel, which they would themselves disdain? Why 
not do as much honour to ourselves, as to the president of the 
United States himself? 

It may be suggested, that this is a private and confidential let-* 
ter from general Wilkinson to the president. It was so said, in- 
deed, yesterday. But if the president were here himself,. the 
court would have a right to demand, whether in confidential con« 
versations general Wilkinson had not given very different state- 
menta from those which he might here produce? What, air, 
if general Wilkinson had reposed as much confidence, if he had 
instilled as much poison into the ear of the president, as Satan 
himself breathed into the ear of Eve ; the president would have 
been still responsible to a court of justice, and bound to.disckMe 
his communications. The law recognises none of this kind of 
confidence. I refer your honours to 2 Atkins, 524, from which it 
appears that no man is privileged to withhold secrets: And to 1 1 
State Trials, Dutchess of Kingston's case: There a physician en* 
treated of the court to excuse him ; but even his professional 
confidence (though of the most delicate nature) would not screen 
him. Lord Barrington in that case conjured them to excuse his 
giving in testimony what had been disclosed to him in all the 
confidence of private friendship. All his solicitations were dis- 
regarded. In MacNally, page 250, it is declared, that there can be 
no secrets, but those which are confided to counsellors and at- 
torneys. Now let us suppose, that this information was convey- 
ed to him by a letter ; nay, by a private and confidential letter: 
Could we not have the president produced here ; could we not 
examine him, whether he had ever received such a letter ? 

But perhaps we shall be told, that this would be making too 
free with high characters ; that we call the honour of genend 
IVilkinaon into question; and that it is not less than treason to 
suppose it possible, that general Wilkinson is not as pure as an 
angeL But, sir, will it be forgotten, that this man has already 
Kroken the constitution to support his violent measures; that he 
has already ground down the civil authorities into dust ; and 
subjected all around him to a military despotism? Is it pos- 
sible to believe, that such a man may not swerve from the strict 
line of rectitude and decorum ? To show the ease with whith 
Vol. I. R 



i 



130 

Qiis man majr be destroyed by anotiier man or bya faction, and 
with the same unfeeling indi&rence a3 a philosopher sees rats 
struggling in an air pump, I wili nead a quotation from Tuck^ 
er's Biackstone. [Here be read it«] Mn Martin produced several 
instances, where the originals of recorded papers were brought 
before a court of justice. 

Respecting copies of die navy orders for destroying the pnH 
perty and person of colonel Burr, it is very materud to possess 
them. It may be necessary to show, that these acts, which the 
prosecutors are pleased to deem treasonable, were in fact no« 
thing but justifiable means for defending his own rights* 

Mr. Mac RA£.-^May it please the court : I regret extremely, 
that on a question so simple, and so eminently divested of all 
personal feelings, as the present, the counsel for the prisoner 
should have considered it as their du^ to wander so widely 
&om the subject before us. I could have wished, sir, that instead 
of talking about shadows; instead of complaining against certain 
pretended persecutions attributed to the government of the 
United States ; instead of indulging in defamation and abuse 
against the officers of government, which can neither be justified 
nor excused, they had confined their observations to the single 
and simple question now presented to your consideration: Whe- 
ther this court had the right to issue a subpoena duces tecumyvA^ 
dressed to the president of the United States? I will not, air, 
imitate the example which has been thus bountifully set me, 
however ample may be the materials, or however rich the har- 
vest which is now spread before me. Whatever I may think of 
the guilt of Aaron Burr; by whatever emodons of disgust and 
> indignation my bosom may be agitated by a contemplation of 
his conduct, I will attempt to suppress my opinions and feelings 
for the present. The time may come, sir, when I shall be at full 
liberty to c^ve them loose. When Aaron Burr shall be put upon 
bis trial; when he shall attend at your bar as a dangerous and 
indicted criminal, I shall not hesitate, sir, in the presence of the 
petit iury, in the presence of this court, and in the presence of 
the whole world, to express all my opinions and feelings. But, 
sir, I shall waive this privilege for the present. I cannot but 
consider it as highly indecorous, when contemplating this single 
question, to embrace all the merits of the case. Mr. Martin 
need not have talked so much of the president's elevation. He 
need not have taken such uncommon pains to expatiate upon 
the high office which he fills, nor so invidiously compare it with 
the irresponsible monarchy of England ; as if the present presi- 
dent considered himself superior to the laws. Although, in this 
country, the decisions of our courts may be considered as doubt- 
ful, it is perhaps certain, that a subpoena ought not to go against 
him; yet, sir, anxious to show to the world that we feel nothing 
of that spirit of persecution, which has been s6 industriously 



131 

and idly attriimled to our govermnent; sdiciknis to give an un- 
erring proof of the principles on which we act, we sh^ not ahel' 
ter ourselves under these precedents Established by the courts of 
the United States. Elevated as our illustrious president is, yet 
our principles are, that when life is in jeopardy, he may be sum- 
moned like any individual, where he is able to disclose impor- 
tant facts, and when the national interests will admit ef his attend- 
ance. As, then, we admit that a subpcena may issue against him: 
as well as against any other man, where was the necessity of ex- 
patiating so widely upon his elevated station? When aH the 
facts which relate to this transaction come to be fully developed ; 
when truth, ana not passion, shall guide our understanding, I do 
not hesitate to affirm my belief, that the bolt, which has been le* 
veBed against his reputation, will vanish into air. I am sorry, sir, 
to be under the necessity of making such remarks as these, but 
let the Uame fail where it is due, upon the gentleman from Ma- 
ryland, who has extorted them, and not upon myself. And here, 
sir, permit me to read the affidavit on which this motion is 
grounded. I do not understand from this affidavit, that any other 
order is requi1%d from the navy department, than the one which 
was addressed to commodore Shaw, and is said to have been pub** 
fished in the Natchez Gazette. That order is alreadv in court; 
and the attorney for the United States has pledged himself to 
produce it, if the coin-t will but decide on the propriety of its ex- 
nibition. The only new piqper, therefore, which is required by 
dus affidavit, is the original letter of general Wilkinson to the 
president of the United States. 

Mr. WiCKHAM here observed, that the gentleman had mista- 
ken the object of the application. We not only (said he) want 
this letter, but the order of the navy department. They tell us 
they have the order, and are ready to produce it ; but we doubt 
the identity of this copy. Without meanmg any imputation upon 
Mr. Smith, we say, that they have several orders from his de- 
partment. Let us see this order then, and we may ascertain whe- 
ther it be the identical one, which we want. Let us but inspect 
the order which these gentlemen halve in their possession, and if 
it be the one which we require, the process to be issued may be 
made more limited in its operation. 

Mr. Hay. — ^The secretary of the navy inclosed (his order to 
bm; for what purpose I know not, unless it was for the sake of 
showing it. But as I am not particularly intsructtd on tlus point, 
I do not conceive myself authorised to produce it at present, I 
w91 exhibit this paper, if the court thinks- it materiaL 

Mr. WiCKHAM. — ^We have a right to apply to the president 
of die United States for the copy of any oi'der; but it it id al- 
leged to be a state paper, it must not be refused on the allega- 
tions of counsel, but on the oath of the officer. 



L 



132 

Mr. Mac Rae.— >l8 your subpcsna then to be addressed to 
these other officers i 

Mr. WicKHAM. — No, sir, to the president alone, who has all 
these offices under his control. 

Mr. Mac Rae. — I will attempt to satisfy the court, that the 
counsel have not grounded their motion upon this affidavit; 
[Here Mr. Mac Rae read the affidavit.] '•^ May be material to 
his defence.'' Now, sir, how is this ? I had always understood 
before, that all applications of this kind must be founded upon 
positive averment; th^t the party was not at liberty to state vague 
and loose conjectures, but that he must give undoubting' asser- 
tions ; and what was still further, that he should swear that these 
documents were material to his defence. The oath is not, that 
they may possibly be of use; that they may or may not be mate- 
riaL On this subject it is not merely sufficient to advaQce some 
precarious conjectures; but the party must explicitly state his 
belief, not that they may be, but that they are material. Nay, 
still further; in criminal cases, the party is not merely required 
by the court to say, that they are material, but to say in what re- 
spect they are so. In these points then, this affidavit is essen- 
tially defective. It certainly does not state how these documents 
are material ; it does hot even assert that they are material, but 
only advances a conjecture that they may be so. 

I believe, sir, on the authority of a decision ofthe court of the 
United States, in the case of Cooper, of Northumberland, (p. 13 
of the report of the trial) it may be shown, that the present 
party has no authority to demand these papers. 

And, sir, the case of Cooper was materially distinguished 
from the one before the court in this important feature; that 
the public officers were in the very city, and on the very spot^ 
where the the trial was conducted. The seat of government was 
then at Philadelphia, and not at Washington. This case, sir, waa 
well known to every individual, who was interested in the poli- 
tics of those times. It is sufficient merely to repeat, that Cooper 
was sued for a libel ; that he put in two pleas : first, not guilty : 
secondly, justification ; and that in order to support his plea of 
justification, he applied to the court for a subpoena to the presi^ 
dent of the United States to obtain certain public documents. 
And what did the judge decide f He decided that the subpoeaia 
ought not to issue, and declared in strong terms against the prin- 
oiple now contended for. 

But, sir^ strong as that opinion is in our favour, and though it 
completely goes to deprive the prisoner of the privilege which 
he claims; and though it is to be considered as law in the courts 
of the United States; yet, sir, abhorring any thing diat looks like 
persecution, we should have disdained to shelter ourselves under 
this abominable precedent. We desire that the prisoner may 



133 

possess all the information which is necessaiy to hU defence. It 
18 my sincere wish, in this as well as in every other point, to 
give him all the assistance, which evidence can afford. From 
our souls, do we abhor every, the slightest thing which wears 
the appearance of persecution. Sir, I have only re£(d this autho- 
rity, to show, that we might easily have refused this demand 
under one of the precedents established by a court of the United 
States. 

Mr. Martin has said, that no secrets ought to be withheld 
from a court of justice, except those which have been confidential- 
ly entrusted to legal counsel; that this is the only exception to 
the general doctrine of evidence; and that in all other cases, the 
witnesses may be compelled to give information. The exception 
recognised by Mr. Martin, certainly does exist; but Mr. Mar- 
tin has taken ground too narrow, nor is that the only case where 
the witness is permitted to keep his information to himself. Sir, 
if a confidential communication has been made to Thomas Jef- 
fersoti, he is not responsible to a court of justice for its contents. 
I speak, sir, with due submission to the court; but I ground my 
opinion principally on a decision of the supreme court of the 
United States. My position is, that if a communication is confi- 
dentially made to Thomas Jefferson, he is not bound to appear 
before this or any other court, to disclose it. It is unnecessary to 
collect arguments to demonstrate the soundness of the policy on 
which this principle is founded : that would be an easy task. 
But, sir, instead of wasting my time and that of the court upoa 
the policy of the measure, I will refer you at once to a prece- 
dent. In the case of Marbury v. Madison, in the supreme court 
of the United States, Cranch's Reports, pages 143, 144, 145, 
Mr. Lincoln, the attorney general, was called into court, and it 
was vehemently contended, that he might be compelled to give 
information like any other citizen. Mr. Lincoln stated his ob- 
jections in the following terms : First, ^^ That he did not think 
himself bound to disclose his official transactions, while acting as 
secretary of state." Second, ^^ That he ought not to be compelled to 
answer any thing which might tend to criminate himself." The 
court supported him in these objections. It follows from these opi- 
nions, that the court should always receive special information 
about the papers, which a party wishes to obtain, before they autho- 
rise him to demand them. They ought to ascertain whether these 
papers contain confidential communications to the head of the 
government. But, sir, if the papers which are called for by the 
affidavit of Aaron Burr be of a public nature, why should the 
coort issue a subpoena duces tecum to demand them? The oppo- 
site counsel may rest assured, and the attorney for the United 
States has actuaUy pledged himself solemnly to this court, that 
he would spare no exertions to obtain a copy of them, if the copy 
irould be sufficient; or the origmak, if copies will not avail. 



134 

Bujt, sir, if this letter be of a confidential nature, it is not the duly 
of the pfeaident of the United States to produce it in this court 
or any where eke. 

And where is the propriety of directing this subpoena in any 
event to the president? If it be a public letter, it is undoubtedly 
deposited with every other paper of the same complexion in the 
archives of state. Why then is not this subpoena addressed to the 
secretary of state, instead of th6 president of the United States? 
There is no specific reason why this informality is adopted; for 
gentleman do not even pretend that they want the president's 
person. All that they pretend to require are certain, papers in his 
possession; and these are evidently to be obtained, without the 
necessity of dragging him from Washington to this city. But, 
sir, if these papers are not of a public nature, but confidential 
communications, then it is not necessary or proper to subpoena 
Thomas JeiTerson. 

One remark more and I have done. The gentlemen insist 
upon the necessity of producing in this court the original letter 
from general Wilkinson to the president of the United States. 
I will suggest an expedient, which may obviate every possible 
inconvenience. If your honours say, that a copy of this letter 
may be read in evidence, like copies of all other documents in 
the departments of government, then also will the attorney for 
the United States consent, that this copy may be read and have 
the very same effect as the original. But gentlemen may contend 
that general Wilkinson would object to this copy. Sir, general 
Wilkinson would have no right to urge such an objection; and 
much less, when he should understand that this very copy is ex- 
pressly introduced into the court, on the principle of possessing 
the same validity as the original itself. But, sir, if general Wil- 
kinson should dare to raise this objection; if he should pretend 
to declare that this was not his letter, or that it was not an ftu« 
thenticated and correct copy, a few days only would elapse when 
the original would certain^ be produced. 

Mr. Mac Rae concluded with repeating his sincere wish^ 
that every proper testimony necessary to the prisoner's defence 
should be produced; but with expressing his hopes, that no 
such step as at that time recommended by the opposite coun- 
sel, would be sanctioned by the court. 

Mr. BoTTs.— In a.govemment of laws, where majesty and 
prerogative are proscribed, and where the authorities of adl the 
public functionaries are to be exercised for the benefit of the 
people, there are but few instances in which the policy of state 
secrecy can prevail. In the national intercourse withforeignstates, 
where the relations present subjects fit for privacy, the rare duty 
of concealment may occur. Some time ago, when the hue and cry 
of treason was rung through the countr\s there might have been 



135 

aa excuse for fhe clum of securing from the e^e of the sus- 
pected, particular acts of the cabinet* At this moment it 
will not be pretended, that the public, good can require, that 
' colonel Burr should not have the means from the departments 
required for his justification. 

Can any innocent purpose, said Mr. Botts, be subserved by 
thepresident's withholding the documents demanded? and will 
the counsel malign him by imputing to him a guilty one? The act 
of congress provides fees for copies from the ministerial offices 
under the control of the president, and every individual has a 
right todemandthem on paying the statuary charges. If indivi* 
duals in common have this right, why has it been denied to colonel 
Burr, whose fate may depend in some degree on them ? One of 
the copies was promised, but the promise was forgotten. State 
policy in England has done a great deal of mischief; it has 
often sheltered wicked and corrupt ministers from the punish- 
ment due to their crimes: yet even there (where the principles 
of liberty are not understood so well as in this country) in Sir 
Home Popham's trial. Lord Melville, president of the board 
of admiralty, was compelled, a few months ago, to appear and 
^ve evidence concerning the instructions he had given to that 
admiraL I do not now complain of the illiberal caution of the 
gendemen in keeping hidden their written evidence, which, if 
known in time, we might refute ; but such testimony as we think 
material in our defence, we are at any rate entitled to without 
favour from them. But the gentlemen have made a concession 
of great liberality ! They say they are willing that the president 
maybe summoned to attend, but not to give evidence when he 
does attend: not to disclose any thing but what he may himself 
condescend to make known. The president may be, and no 
doubt is, a very great and good man ; but while his policy in re- 
lation to the accused is s6 completely enveloped in mystery, the 
counsel for the prosecution must pardon us, if we cannot consent 
to pin our faith on his sleeve, and if we choose rather to betake 
oarselves to our legal rights. 

The opinion given by judge Chase on the trial of Cooper, 
was reprobated by the politics of those gendemen who prose- 
cute for the United States ; and yet they now wish to avail 
diemselves of that authority. I congratulate them upon tl^eir de- 
reliction of the old democratic opinions which prevailed at the 
time of Cooper's trial, and which I thought would have gone 
with ^y friends to their graves. 

Mr. JVf AC Ra£ observed, that Mr. Botts ha^ misrepresented 

the object for which he had introduced the opinion of judge 

Chase; that he had not pretended to use it as authority ; but, 

on the contrary, had expressly declared that he scorned to avail 

himself of it. 






13« 

Mr. WiCKHAM said, that judge Chase's opinion pronounced 
in the case of Cooper was not correctly ^inderstood. It was not 
that the. president could not be summoned as a witness, but 
that he ought not to be summoned to give evidence against 
himself. 

Mr. BoTTs proceeded to say, that even that qualified opi- 
nion of judge Chase had been reprobated by the gentlemen; but 
now they shelter themselves under it in effect, because they 
use it as authority against the success of the present motion. 

The gentlemen contend that the executive must judge whe- 
ther the documents require secrecy or not. But how can this 
judgment be exercised until they are called upon? And how 
can the government be legally called on but by process of 
subpoena duces tecum ? When this is serv&l the president may 
make out his return. 

As to the argument that a copy of general Wilkinson's letter 
will be sufficient: Suppose, said Mr. Botts, general Wilkinson 
should swear to one thing, and the copy of his letter should 
say another;^ would you condemn him upon the president's cer- 
tificate merely that the paper produced contained a true copy 
of a letter from him ? 

He concluded with observing, that, if a time shall ever ar- 
rive when a person shall stand accused of a crime of the high- 
est nature ; of a crime by which his life is endangered, if a part 
of the testimony shall be concealed by those who administer 
the government, and no policy of state requires it ; and yet the 
court does not compel it to be produced to screen the devoted 
victim; it will be a disastrous time for our country! 

Mr. Wirt. — ^The counsel for the prosecution dp not deny 
that the general subpcena ad testificandum^ may be issued to 
summon the president of the United States, and that he is as 
amenable to that process as any other citizen. If his public 
functions disable him from obeying the process, that would be 
a satisfactory excuse for his non-attendance pro hicc vice; but 
does not go to prove his total exemption from the process* 
We think farther, sir, that a man, standing in the situation of 
the prisoner, has also the right to demand all papers material 
for his defence, wheresoever they may be, the disclosure of which 
will hot compromit the national safety; but then the papers 
required must be shown to be material for his defence., The 
subpoena ad testtficandumy is a matter of right, and the prisoner 
might have demanded it from the clerk without the interven- 
tion of the court; but here is a motion for a subpimia duces 
tecum^ to compel the president to produce certain papers of 
state, the materiality of which is not shown. 

I shall contend first, sir, that the subpoena duces tecum is not n 
process of right; that the motion for it, is a motion addressed 



137 

to the discretion of the court; and that the court may award 
Or withhold it as they see fit* 

In the next place, I shall contend, that this discretion of the , 
court should be controlled and determined only by the relevancy 
and materiality of the papers required. 

And, thirdly, that in the present instance, the relevancy and 
materiality of the papers required are so far from being shown, 
that, from every thing which appears, they are both immaterial 
and entirely irrelevant. 

I shall proceed to show, in the first place, that the subpoena 
duces tecum is not a process of right, but that the application 
I for it is addressed merely to the discretion of the court. 

Mr. WiCKiiAM. — That is admitted, sir; we admit that it is 
an application to the sound discretion of the court* 

Mr* Wirt. — I thank you for the admission, sir* You have 
relieved me from the unn/scessary trouble of so much of my 
argument* It being conceded then, that this is an application 
to the discretion of the court, the question naturally presents 
itself, by what circumstances should that discretion be con- 
trolled and determined ? Should it be by the mere wish of the 
prisoner? If so, it is in vain that the court possesses any dis* 
cretion on the subject ; the only discretion exercised about it^ 
is the discretion of the prisoner* He has but to ask and have ; . 
and by his mere wish, he changes this from a process flowing 
j from the discretion of the court, into a process of absolute 

right. Consider this wide and bold doctrine on the ground of 
expediency* Would you summon any private individual from 
the remotest part of the United States, to produce a paper on 
the mere wish of the prisoner, without his defining the paper 
and showing how it bore upon his defence? If you would, you 
put the pursuits and the peace of every individual in the United 
States at the mercy of the prisoner's caprice and resentments* 
This arg;ument, from inconvenience, assumes an attitude of the 
most awful and alarming importance, when you extend it to a 
case like this before the court* A prisoner seldom has any cor- 
dial aaiity for the government by which he is prosecuted for a 
crime. The truth is, that he feels himself in a state of war with 
that government; and the more desperate his case, the more 
ardent will be his spirit of revenge. Would you expose the 
offices of state to be ravaged at the mere pleasure of a prisoner, 
who, if he feels that he must fall, would pant for nothing more 
anxiously than ^^ to grace his fall and make his ruin glorious,'' 
by dragging down with him the bright and splendid edifice of 
the government? Sir, if Aaron Burr has the right, at his mere 
wish, to call one paper from the government, he has the same 
right to call any other; and so, one after another, might divulge 
Vol. r. S 



138 

and proclaim to the woiid« every document and secret of statCt 
•however delicate our foreign relations might be, and however 
ruinous the disclosure to the honour and prosperity of the 
country. These, sir, are topics offered to the discretion of the 
court. 

It is certainly much to be wished, that a rule cOUld be de- 
vised, which, while it should protect the rights of the prisoner^ 
should also protect the public offices from being wantonly and 
unnecessarily violated. I think there is such a rule. It is this : 
it is by requiring that the prisoner who calls for a paper, should 
show that the paper applies to his case, and is requisite for his 
defence. When he shall have done this, I hold that he will be 
entitled to call for any paper. It will then rest with the presi- 
dent of the tJnited States, the officer appointed by the people 
to watch over the national safety, to say whether that safety 
will be endangered by divulging the paper. Surely, sir, justice 
to the prisoner requires no more than that he should possess 
§uch papers as are material for his defence; and will not the 
court require that he should show that materiality, before they 
give way to his call? If they do it, if they say that it is enough 
tor the prisoner to. wish a paper, to have it; they put them- 
selves, as well as the chief magistrate of the Union, in danger 
of becoming the mere ministers of the prisoner's whim, or ma- 
lice and resentment; but by adopting the rule which I have 
proposed, they would avoid these consequences and do all .that 
justice requires^for the prisoner. 

When the subject Was first mentioned, it was said, by one of 
your honours, that it is usual to award the subpoena ^c^^ tecum 
on the mere motion of the party, unsupported by any affidavit 
as to the purpose for which the paper was required. This is 
true, sir; such an affidavit is not generally required; but why i% 
it not? Because the relevancy and materiality of the pap^ ar^ 
admitted by the adverse counsel, or are palpable from the na- 
ture of the issue and of the paper required. The docket, for 
example, presents the case of a writ of right, or an action of 
ejectment; the name of the action, shows that the title of land 
is in question. One of the parties moves for a subpona duces 
tecum directed to the clerk of another court, and requiring him 
to bring up a deed or a will which forms a link in the claim of 
his^ide. The adverse counsel, if he be present, admits by his 
silence the propriety of the motion; or if his silence has not 
that effect, the nature of the issue and of the paper required^ 
show at once the relevancy and materiality of the latter. 
Hence it has happened, that these motions are usually unsup- 
ported by affidavit. But is this the case here? The relevancy and 
materiality of the papers called for are not admitted by us: 
2ite that relevancy and materiality palpable frotu the nature of 



139 

die points in issue and the papers required? Le,t us see if they 
be. The two charges against the prisoner are, first of high 
treason; and secondly, misdemeanor, in setting on foot an 
expedition against the territories of a nation with whom we are 
at peace. For the purpose of his defence, he says he wants a 
letter from genend Wilkinson to the president; which letter 
contains a declaration of his guilt; and also certain orders from 
the department of war, which he says directed the burning and 
destruction of himself, his people, and his property. Now, sir, 
what possible tendency can either of these papers have to acquit 
the prisoner of the treason or the misdemeanor? As to the or- 
ders, which have been depicted as being so sanguinary and 
despotic, I affirm, with the power of proof to support me, that 
such orders never were given; though if it be true, that Aaron 
Burr had placed himself in a state of war with his country; 
was aiming a blow at the vitals of our government and liberty, 
and that blow could be averted in norther way, I hold that his 
destruction would have been a virtue; a great and glorious vir- 
tue. Affairs, however had not reached that desperate crisis. 
We have seen the orders, sir, and at a proper time will pro- 
duce them* The very orders to lieutenant Shaw, which the pri- 
soner has so often mentioned, as having been published in the 
. Natchez gazette; those orders are not as he has described 
d&em; they are simply orders to apprehend Aaron Burr, and 
i/jt Bhall become necessary for that purpose^ to destroy his boats. 
Those are the bloody orders which have been so often men- 
tioned with looks of such tragic and mysterious import! Sup- 
pose the orders were as barbarous as he has described them, 
and that the emergency did not justify them, they prove the 
administration wrong; but do they prove, or tend to prove, 
Aaron Burr innocent? If the president were on his trial, for 
having issued these orders, it would be necessary to hear the 
orders themselves, in order to ascertain their merits or deme- 
rits* But the question is not now as to the guilt or innocence 
of the president: it is as to the guilt or innocence of Aanm 
Burr on the charges of treason and misdemeanor; and whether 
die president has acted right or wrong, does not and cannot af- 
fect the question of Burr's guilt or innocence. The charges 
against him are to be proved by witnesses on behalf of the 
United States. If diese witnesses do not prove the charges, 
diere is an end of the inquiry : but if they do, I ask whether it 
be possible that his production of the president's orders, even in 
his own terms, will remove that evidence of his guilt? Every • 
judgment must answer No: and if so, the orders are clearly im- 
naterial for his defence. But although the affidavit does not 
attempt to show wherein these orders are material for the pri- 
soner's defence, Mr. Martin has attempted to supply this omis- 



i 



14Q 

sioD by his argument. It seems these orders were ao lawless, 
that Burr had a right to resist them : and whatever he has done 
has bceii in self-defence against these orders. It would be easy, 
sir, to expose the flimsiness and fallacy of this pretext by a re- 
ference to dates. The man cannot have a very chronological 
head who can impute crimes throughout 1805, 1806, to orders 
issued in the last month of the last year, or the beginning of 
1807; but without stopping to annalyse more minutely this 
strange anachronism, let us inquire into this doctrine of resist- 
ance which Mr. Martin has advocated* I am not an advocate 
for passive obedience and nonresistance. I do not think, as 
Mr. Martin has asked, that a man becomes a god when he be- 
comes a president. I think he does not become a god even by 
becoming a king or an emperor. On the contrary, I think that 
a man who, in a government like ours, even aspires to become 
one, approaches, in point of character^ a class of beings very oppo^ 
site to gods. But ascending again to our president : he is bound 
by his oath of office to take care that the laws shall be carried 
into effect. By the particular act of congress which prescribes 
the punishment of misdemeanor charged on the prisoner, the 
president is authorised and required to call the naval and mi. 
litary force of the country to defeat the enterprize. In the pre. 
sent instance he has done so, and given orders for the apprehen- 
sion of the offender: and we are told that Aaron Burr, instead 
of submitting himself to the laws and justice of his countrvt 
had a right to resist these orders; that Aaron Burr was to be 
the judge, whether he should obey or not, orders proceeding 
from the lawfully constituted authorities of his country; and 
that if he thought them unlawful, he had a right to resist 
them by force. If this be so, there is an end of government. 
Every individual in the country, I presume, has, at least, the 
same rights with Aaron Burr: and if he has this right of sub* 
mitting to, or resisting the laws and officers of the government, 
as he pleases, every body else has the same right: then where 
is the use of our constitution, laws, or officers? We might as 
well abolish them all, and return to a state of nature. But, sir, 
neither Aaron Burr nor any other individual carries about him 
this dispensing power. It is clear, that the very act of re- 
sistance, of which Mr. Martin has spoken, was itself an act of 
treason. Before the orders can be material for his defence, on 
this ground, it must be determined that he had the right of re- 
sistance; but, as I presume it to be impossible, that the court 
can entertain this latter opinion, I conclude, that the orders in 
question, cannot be relevant or material to his defence in this 
light; and no other has been presented, or I believe can be 
presented. Let us now consider the letter from general Wil- 
kinson to the president, and inquire how that touches either of 



141 

the issues in which the prisoner is involved, and how the pro- 
duction of the original letter is to operate to his benefit. If the 
letter be material at all, a copy will answer every purpose* The 
letter, I presume, from the use made of it by the president, is 
a public document, and is lodged in the department of state. 
The law of the United States, which establishes this office,^ con-, 
tains the following clause : 

*^ And be it further enacted, that the said secretary shall 
cause a seal of office to be made for the said department of 
such device as the president of the United States shall approve, 
and all copies of records and papers in the said office, authenti- 
cated under the said seal, shall be evidence equally as the ori- 
ginal record or paper.'' 1 vol. Laws U. S. Chap. xiv. p. 5. 

Hence a copy of this letter will answer every purpose 
of the original ; and it will be no more competent to general 
Wilkinson to deny the authenticated copy than the original. 
But let us see of what use a copy of this letter can be to 
him? We know nothing of this letter except from the message 
of the president, to which the counsel on the other side have re- 
ferred us ; and by this message it appears, that it was from this 
letter, connected with others, that the president inferred the pri- 
soner's guilt; a letter then, which according to the only account 
we have of it, contributes to establish the prisoner's guilt, is re- 
quired for the purpose of proving his innocence ! But this let- 
ter we learn, not from the affidavit, but from argument, is re* 
quired for the purpose of confronting general Wilkinson if he 
should trip in his evidence. At present then, there is confes- 
sedly no issue to which this letter applies ; but one may possi- 
bly occur by general Wilkinson's departing in his narrative from 
the statements of his letter. Now, sir, suppose a man should 
move you for a subpoena duc^s tecum in a civil question, stating, 
indeed, that there was at present no suit to which the paper 
could apply, but that he apprehended one might be brought, 
in which it might be material, would his motion be granted f 
Now where is the difference between such a motion and the 
very remote probability that general Wilkinson will produce an 
occasion for this letter, in contradicting by his parol testimony 
the statement of his letter? But let us press this point a little fur- 
ther. No one pretends to know any thing of the details of this 
letter; all we know of it is derived from the president's mes- 
sage ; and from that all we learn of it is its general character, 
that it goes to prove the guilt of Burr. Now, in order to pro- 
duce any collision between this letter and Wilkinson's parol 
evidence, the letter must have an opposite character ; that is, it 
must go to show the innocence of Burr. If Wilkinson conti- 
nues to avow the guilt of Burr, there will be no contradiction 
between his testimony and his letter, and consequently there 
can be no confrontation between them, beneficial to the prison- 



142 

e'r; there eap be « confrontation in no other event, than th^t of 
his deposing to Burr's innocence. The result of the argument 
is, that Burr, apprehensive that the evidence of genenil WU« 
kinson may be favourable to him, wishes the general's letter for 
the purpose of destroying that evidence, and proving his own 
guilt. Again, sir. I have never seen or heard of an instance of 
this process being required to bring forward any paper, but 
where such a paper was in its nature evidence; for which 
either party had an equal right to call, and to use it when pro- 
duced. But it is obvious that in this case and in the present state 
of things, we could not use the letter of general Wilkinson as 
evidence; although the opposite party should obtain his subpoena 
duces tecum for this paper, and would seem thereby to have 
made it evidence, and introduced it into the cause. Yet after it 
comes we cannot use it: hence there is no reciprocity in it. 
The paper is not, at present, evidence, and therefore is not 
within the principle on which this process is awarded. One 
more remark on this letter, and I have done with it. I 
am no more an advocate for the needless multiplication 
of state secrets, than the gentleman who has preceded me. 
It looks too much like the mysteries of monarchy; and I hate 
monarchy with all its mysteries, as I do the mysterious move- 
ments of those who are lovers of monarchy. Yet it is obvious, 
that there may be cases in which the very safety of the state 
may depend on concealing the views and operations of the go^ 
vemment. I will instance in this very letter. I do not know 
what it contains ; but it is from the general who commands on 
the Spanish frontier. That the state of our aflairs was and is 
with Spain, not the most amicable, is well understood. We 
know that our affairs in that quarter wear^ even at this time, 
the most lowering aspect. Suppose this letter should contain 
a scheme of war, a project of attack, would it be proper to di- 
vulge and proclaim it even to Spsun herself? If the letter con» 
tains such a thing, I have no doubt that the president ought 
and will conceal at least so much of it. This, however, will be 
a question with him, when the paper shall be called for ; and a 
question which he alone is competent to decide. 

.From what has been said, I take it to be clear, that the rele- 
vancy and materiality of these papers for the prisoner's defence, 
arc not palpable, by comparing the nature of the papers with the 
nature of the issues ; and bdng neither self-evident nor admit- 
ted, I hold that the party is bound to show, at least by his aflBi- 
davit, wherein they are relevant and material This he has not 
pretended to do, in the affidavit offered to the court; for in that^ 
he has merely stated, in terms the most loose and vague, that he 
believes these papers may be material for his defence. Sir, he 
Plight take the same oath as to any paper in the offices of state^ 
.without the possibility of proving him forsworn ; for he swears 



143 

merely to a conjeccure, and whether he entertains it or not, can 
never be decisively known to any one but himself. Will you lay 
open the public offices /to be ransacked by conjectural affidavits? 
Will you adopt a precedent which will put it in the power of 
the enemies of the government at any time, and without the ha* 
zard of punishment, to explore your offices with the worst of 
views, and harass the officers themselves at their discretion? Sir^ 
I wish the prisoner to have a fair trial* I wish him to possess 
every atom of evidence which can contribute to his acquittal; 
but these papers appear to me not calculated to touch the issue, 
and still less calculated do the prisoner any good. If he thinks 
otherwise, where can be the difficulty of his showing, by an affi- 
davit at least, some probability of their doing him service* If he 
knows the nature of these orders and that letter so well as to 
have ascertained to his own satisfaction, that they may do him 
service, where can be the harm of his setting out in his affidavit 
the character of the papers, and showing how they may be 
brought to bear upon his case ? When he shall have done so, the 
court will have something for its discretion to act upon; at pre* 
sent they have nothing but the prispner's faint conjecture, and 
die discretion would appear to me not very sound which would 
be determined by a consideration like that. 

I can see but one possible objection to the particular affidavit 
which I require, which is, that the prisoner would thereby un- 
mask his defence. But in the case of the United States against 
Smithy a particular affidavit was required by judge Patterson, 
setting out what it was expected to prove by the witnesses; and 
ahhough it was objected in that case, that by demanding such 
an affidavit, he compelled the accused to unmask his defence, he 
nevertheless demanded the affidavit. And in that case, as in this, 
ahhough the materiality of the evidence wa^ supported by some 
of the ablest advocates on the continent, the court determined 
agadnst its materiality, and the cause went on without it: but in 
the present instance, an objection as to unmasking the defence 
would be an objection merely of form, because the gendemen 
have by their arguments, in fact, taken off the mask, and stated 
the maoner in which they expect this evidence to apply. We 
have examined their expectations, and I hope found them 
baseless. 

I conclude, sir, that this is an application to the discretion of 
the court; that justice to the prisoner required only that he 
should have all papers from the officers of state which he shall 
show to be material and relevant to his defence; that he has not 
Aofwn them to be so in this case; and that, therefore, the pto* 
cess should be withheld undl he does show them to be so. I 
know of no other rule which, while it will protect the rights of 
the prisonei^ will also save the offices from needless, wanton and 
wicked violations. 



144 

I cannot take my seat, sir, without expressing my deep and 
sincere sorrow at the policy which the gentlemen in the defiance 
have thought it necessary to adopt. As to Mr. Martin, I should 
have been willing to impute this fervid language to the sym- 
pathies and resentments of that friendship which he has taken 
such frequent occasions to express for the prisoner, his honouro" 
able friend. In the cause of friendship I can pardon zeal even up 
to the point of intemperance; but the truth is, sir, that before 
Mr. Martin came to Richmond, this policy was settled, and on 
every question incidentally brought before the court, we were 
stunned with invectives against the administration. I appeal to 
your recollection, sir, whether this policy was not manifested even 
so early as in those new and until now unheard of challenges to 
the grand jury for favour? Whether that policy was ngt follow- 
ed up with increased spirit, in the very first speeches which were 
made in this case; those of Mr. Botts and Mr. Wickham on 
their previous question pending the attorney's motion to com- 
mit? Whether they have not seized with avidity evcrj' subse- 
quent occasion, and on every mere question of abstract law be- 
fore the court, flew off at a tangent from the subject, to launch 
into declamations against the government? Exhibiting the pri- 
soner continually as a persecuted patriot: a Russell or a Sidney, 
bleeding under the scourge of a despot, and dying for virtue's 
sake ! If there be any truth in the charges against him, how dif- 
ferent were the purposes of his soul from those of a Russell or a 
Sidney! I beg to know what gendemen can intend, expect, or 
hope, from these perpetual philippics against the government? 
Do they flatter themselves that this court feel polidcal preju- 
dices which will supply the place of argument and innocence on 
the part of the prisoner? Their conduct amounts to an insinua- 
tion of the sort. But I do not believe it On the contrary, I feel 
the firm and pleasing assurance, that as to the court, the beani 
of their judgment will remain steady, although the earth itself 
should shake under the concussion of prejudice. Or is it on the by- 
standers that the gentlemen expect to make a favourable impres- 
sion ? And do they use the court merely as a canal, through which 
they may pour upon the world their undeserved invectives against 
the government ? Do they wish to divide the popular resentment 
and diminish thereby their own quota ? Before the gendemen 
arraign the administration, let them clear the skirts of their cli- 
ent. Let them prove his innocence; let them prove that he has 
not covered himself with the clouds of mystery and just suspi- 
cion; let them prove that he has been all along erect and fair, in 
open day, and that these charges against him are totally ground- 
less and false. That will be the mo^t eloquent invective which 
they can pronounce against the prosecution ; but until they prove 
this innocence, it shall be in* vain that they attempt to divert our 



145 

minds to other objects, and other inquiries. We will keep our 
eyes on Aaron Burr, until he satisfies our utmost scruple. I beg 
to know, sir, if the course which gentlemen pursue is not disre- 
spectful to the court itself? Suppose there are any foreigners here 
accustomed to regular government in their own country, what 
can they infer from hearing the federal administration thus re- 
viled to the federal judiciary? Hearing the judiciary told, that 
the administration are ^^ blood houndsy hunting this man with a 
keen and savage thirst for blood; that they now suppose they have 
hunted him into their toils and have lum safe." Sir, no man, 
fiireigner or citizen, who hears this language addressed to the 
court, and received with all the complacency at least which si- 
knce can imply, can make any inferences from it very honour- 
able to the court. It would only be inferred, while they are thus 
suffered to roll and luxuriate in these gross invectives against the 
administration, that they are furnishing the joys of a Mahome- 
tan paradise to the court as well as to their client. I hope that 
the court, for their own sakes, will compel a decent respect to 
that government of which they themselves form a branch. On 
our part, we wish only a fair trial of this case. If the man be in- 
nocent, in the name of God let him go; but while we are on thb 
question of his guilt or innocence, let us not suffer our attention 
anid judgment to be diverted and distracted by the introduction 
of other subjects foreign to the inquiry. 

Mr. WiGKHAM appealed to the court if the counsel for colonel 
Burr had been the first who began the attack; and wished the 
gentleman to follow his own wise maxims. He observed, that 
Mr. Wirt had met the question fairly, and concedeff several 
points which had been contended for by his associates. He ad- 
mitted the granting a writ of ^^ subpoena duces tecurrC^ to be a 
matter of discretion; but insisted, that the opinion of the party 
applying for it, that the papers might be material, was sufficient. 
He said that the question in the case of the United States v. 
Smith, arose on a motion for a continuance. 

Mr. Wirt corrected his statement; observing, that the motioa 
was for a continuance and for an attachment against the witnes- 
ses at the same time, and both questions were argued collectively. 

[The following is but a brief and imperfect sketch of the very 
ingenious apd able argument of Mr. Wickham, in reply to the 
▼cry eloquent and impressive speech of Mr. Wirt.] 

Mr. Wickham agreed that such was the case; but contended 
that the special affidavit was required, because there was a mo- 
tion for a continuance; and that on a motion of this kind, an 
affidavit need not be speciaL He said, that the reason given by 
ju4ge Patterson^ for requiring a sp^oistl stat^mj^nt of what wt» 

Vol. h T 



146 

intended to be proved by Messrs. Madison and ^rnith, was, that 
if they had been present, their evidence (if it only went to prove 
that the president had sanctioned the expedition) would have 
been of no consequence; since the president's sanctioning the 
expedition could not have rendered it lawful. 

We are told, said Mr. Wickham, that Wilkinson's letter is 
bot important! Yet he is the pivot on which this prosecution 
turns. Without his evidence they could not progress With the 
trial. When he arrives, it will be all important to us to prove 
the falsehood of his testimony, by proving that he has contra- 
dicted himself. His credibility is the point in question; and 
surely general Wilkinson is not so immaculate as the govern- 
ment. We may allude to his tyrannical and oppressive conduct 
at New-Orleans; we may demonstrate that his feelings, his in- 
terests, his character, require him to secure the conviction of 
colonel Burr. Under these circumstances, his veracity must be 
very doubtful, especially if we can show that he has made three 
or four different and inconsistent representations of the transac- 
tions charged to be treasonable. His letter therefore ought to be 
produced. 

As to the inconvenience to which the public offices may be . 
subjected, it ought not to be regarded; for those offices were 
made for the good of the people, not for the good of the officers. 
All that colonel Burr is obliged to show, is probable cause to 
believe that Wilkinson's letter may be material, though he can- 
not swear that it is material. Mr. Wirt says, he is not an advo- 
cate for state secrets; but he is in this case without knowing it. 
He has s^id too, that the acquittal of colonel Burr will be a sa- 
tire on the government. I am sorry that the gentleman has 
made this confession, that the character of the government de- 
pends on the guilt of colonel Burr. If I believed him to be cor- 
rect, I could easily explain, from that circumstance, the anxiety' 
manifested to convict him, and the prejudices which have been 
excited against him. But I will not believe that this is the case, 
but will tell the gentleman that we think Burr may be acquitted, 
and yet the government may have pure intentions. 

The writ of subpoena duces tecum ought to be issued, and if 
there be any state secrets to prevent the production of the letter^ 
the president should allege it in his return; for at present, we 
cannot know that any such secrets exist. And the court, when 
his return is before them, can judge of the cause assigned. But 
/ have too good an opinion of the president^ to think he rvouid 
withhold the letter. 

The gentlemen on the other side have said, ,that we do not 
wish to unma^ our defence; but in withholding the papers 
which we demand, they show that they have on the mask, and 
we wish the court to aid us in making them pull it off. 



147 

We cont^d that no affidavit on the part of coloftel Burr is 
necessary* Wilkinson's affidavit, already published, together 
with the president's communication to congress, prove that the 
letter in question must be material. It may show, that the trea« 
sonable transactions attributed to colonel Burr within the limits 
of this state, never existed; for as to Blannerhasset's island, the 
gendemen in the prosecution know^ there was no such thing as a 
military force on that island. ' 

[Here Mr« Hay interrupted him, and said, that it was ex- 
tremely indelicate and improper to accuse them of voluntarily 
supporting a cause which they knew to be unjust* He solemnly 
denied the truth of the charge against him and the gentlemen 
who assisted him, and declared that they could prove the actual 
existence of an armed assemblage of men on Blannerhasset's 
island, under the command of Aaron Burr*] 

Mr* Wickham acknowledged that he had gone too far in the 
expression he had used, and ought not to have uttered what he 
had said concerning the counsel for the United States, and de- 
clared that he meant nothing personal against them* He pro- 
ceeded to argue the question concerning the production of the 
president's orders* He denied, as Mr. Martin ha4 done before, 
the legality of those orders, and contended that colonel Burr had 
a right to resist them* Mr* Burr was brought here — ^how he 
was brought we will not say; but we will say, that resistance to 
the militia ordered out against him, was resistance to tyranny 
and despotism*" 

Mr. Wickham returned to the question relative to Wilkinson^ 
letter* We are told, he said, that the letter is in the department 
of state, and a copy will be sufficient* If the letter was written 
to the president of the United States, and not to the secretary 
of any department, we may presume that the president has it in 
his own possession* But if a copy were here, Wilkinson might 
deny that he ever wrote the letter; and although the copy might 
be fedthful, it could not prove that the letter was not a forgery* 
The original, therefore, will alone answer our purpose. 

Mr. Wirt lays down the strange principle, that Wilkinson's 
letter is not evidence, because it could make only in favour of one 
side; but that it ought to make in favour of the other side also. 
Give the gentleman his premises, and his conclusion follows. 
But his premises are false; for the doctrine cannot be sound, 
that nothing is evidence but that which makes in favour of both 
sides of a question. Such reciprocal effect is not essential to the 
admissibility of evidence* 

When Mr* Wickham had finished, the Chief Justice observ- 
edy that although many observations (in the course of the several 
discussions which had taken place) had been made by the gende- 



148 

« 

men of the bar, in the heat of debate, of which the court did 
not approve, yet the court had hitherto avoided interfering; but 
' as a pointed appeal had been made to them on this day, (allud- 
ing to the speech of Mr. Wirt), and they had been called upon to 
support their own dignity, by preventing the government froni» 
being abused, the court thought it proper to declare that the 
gentlemen on both sides had acted improperly in the style and 
spirit of their remarks ; that they had been to blame in endea- 
vouring to excite the prejudices of the people; and had repeat- 
edly accused each other of doing what they forget they have 
done themselves. The court therefore expressed a wish that the 
counsel for the United States and for colonel Burr, would con- 
fine themselves on every occasion to the point really before the 
court; that their own good sense and regard for their characters 
required them to follow such a course; and it was hoped that they 
would not hereafter deviate from it. 

The court then adjourned until Thursday morning, eleven 
o^clock. 

Thursday, June 11th, 1807. 

The court met according to adjournment. 

Mr. Hay Mdressed the court to this effect: I am happy the 
court has recommended to the counsel on both ^des to adhere 
more strictly to the subjects in debate. Their admonition will 
be followed by me, and I wish they would cause it to be followed 
by others. I regret indeed that it was not made somewhat sooner. 
Perhaps if it had, we might have been spared the pain of hearing 
many remarks as unauthorised in point of principle and fact as 
they are irrelevant; remarks which, as a public prosecutor, as a 
friend of my country, and a supporter of its constitution, govern- 
ment and laws, I heard with surprise and regret, and with a senti- 
ment which I will not name. I will not imitate this example of 
my opponents, but endeavour to confine my obser\'ations exclu- 
sively to the question now in discussion. I am really doubtful 
however, whether I should not be departing in some degree from 
this declaration in noticing one argument used by the gentleman 
who last spoke, (Mr. Wickham). Language so strange, a charge 
so unjust, I hope, however, I may be permitted to repel. 

The gentleman, with a tone of voice calculated to excite irrita* 
tion, and intended for the multitude, charged us with conceding 
point after point! He insinuates that we have been catching at 
every thing to bear down the accused ; that we inconsiderately- 
con tend for any doctrine, however absurd, which might have the 
effect of injuring him, and afterwards are obliged to abandon the 
ground we have too precipitately taken. I will ask, if any occur- 
rence has shown that we are actuated by this spirit? No* sir. 
The gentleman knows the charge is unjust. But even if it had 



149 

been true, that we had made concessions, it ought to have been 
considered as a proof of our candour and liberality, in giving up 
ground as soon as we thought it untenable, and not as a matter 
of reproach. But, sir, it is not correct. We have conceded no 
point that we ever maintained. We admitted that the president 
might be subpoenaed as a witness, because we always thought so. 
We never clothed him with those attributes of dignity which 
gendemen have accused us of ascribing to him. We know the 
president is but a man, though among the first of men; he is but 
a citizen, though the first of citizens. The president too knows, 
that, like the great Cato, he ought to pay obedience to the ^ws 
of his country, and obey the commands of its courts of justice. 
All this we have uniformly admitted; but have denied, and 
deny now, that a subpoena duces tecum ought to be issued to the 
president. 

Mr. Hay moreover observed, that the objection made the day 
before to the prisoner's right to make the motion in the present 
st:^ of the prosecution was not waived ; and that in opposing 
the motion, he was influenced solely by a desire to keep the ac* 
cused and his counsel within legal limits; because he had en- 
deavoured to procure for them the very evidence they requested. 
He proceeded to argue the question upon its merits. 

It having been admitted, that this was a motion addressed 
only to the discretion of the court, it followed, that it ought to 
be granted only when substantial justice required it; that it is 
to be granted to a person accused, because his defence when 
properly conducted requires it. But the accused himself in this 
case does not say these papers are material in his defence. His 
affidavit is drawn with great caution. He only says that the pa- 
pers may be material. This is nothing more than the mere ex- 
pression of an opinion, which may be correct or incorrect. Mr. 
Hay asked the counsel for colonel Burr, and more especially 
Mr. Martin, if in the course of their long experience they had 
ever known such an affidavit? Its language is unprecedented, 
designedly vague, and equivocal. The letter may be mate- 
rial! This may depend upon the use intended to be made of 
it. The object of demanding it may be to give his counsel an 
opportunity to speak as they have done before; to charge the 
government with illegal and barbarous persecution, and with 
endeavouring to crush and overwhelm the accused. All this 
may be said, and no doubt will be said, and may be a very con- 
siderable help to colonel Burr. * 

The affidavit is truly farcical; because from any thing ex- 
pressed in it, the letter of general Wilkinson may^ or may not 
be material. Suppose these words ^^ or may pot" had been in- 
serted, would it then have been regarded? The absurdity would 
then have been too evident* And is it not the sa^ie thing in 



150 

substance as it now stands? If such an affidavit as this is suffi- 
cient, and mere curiosity is to be indulged, the president might 
be required to produce all our correspondence with the Spa- 
niards about our disputed territories ; in short, all the papers of 
government would be laid open to the inspection of Burr. But 
the court ought not to issue process on speculation only; it 
ought not to subject the public officers to inconvenience, and 
the national archives to derangement, unless in a case where 
justice plainly requires it* 

But the affidavit would not have been sufficient if he had 
said, what he dared not to say, that the papers are material. It 
should appear how they are material. The nature of the evi- 
dence ought to be specially stated, that the court may judge of 
it. Will the court rely on the judgment of the party in this 
case? Misled as he is by his feelings, his judgment ought not 
to be tru3ted. 

' Even in ordinary cases the court will inquire as to the con- 
tents of papers on a motion for a continuance. Which doctrine 
is recognised in 2 Bl. Rep. 514. The same thing was done in 
the case of the United States v. Smith and Ogden, in which 
almost as much clamour was excited as in this. There, the 
evidence of Mr. Madison and others was sworn to be material; 
but the court required a specification of its substance, and de- 
cided that it was not admissible. The papers required in the 
present case would probably be so decided, if they were here. 
I have a knowledge of the orders, and think so with respect 
to them. The letter I know nothing about. Mr. Wickham's 
argument, that the court did right in Smith and Ogden's case, 
because it was prima facie presumable that the evidence would 
not be admissible, turns against him here ; for, certainly, it is 
prima facie presumable that general Wilkinson's letter cannot 
make in Burr's favour, since the orders to intercept him on his 
passage to the seat of his empire were founded on the infor- 
mation received from that letter. 

The conduct of the gentlemen proves, that they feel us to be 
right. Their involuntary conviction of this is evinced by their 
endeavouring to supply the defect in the affidavit, and to spe- 
cify the purposes for which the papers are wanted. The accused 
has liot ventured to swear that they are material, but they as- 
sert it, and attempt to show it by argument. 

First, as to the letter. Mr. Wickham says, that Wilkinson 
has written othei^ letters to other persons differing from this. 
We deny the fact. If it be true, why is it not sworn to? But 
suppose general Wilkinson had done so, what is the inference ? 
Is his evidence before the jury not to be regarded? It is strange 
indeed that the gentlemen say they have never seen this letter^ 
and only guess at its contents, yet say, that letters containing 



ISI 

different statements have been written! Surely such efforts as 
these are deplorable; for, whether the assertion be true or not, 
it is not known to be true. 

They next contend that the orders are material because they 
were illegal, arbitrary, unconstitutional, oppressive and unjust; 
that Burr's acts were merely acts of self-defence against t3^ranny 
tod usurpation, and^ of course, were justifiable. 

Many strange positions have been laid down, but this is 
monstrous. Mr. Martin will excuse me for saying, that I ex« 
pected sounder doctrine from his age and experience. These 
principles were not learnt by him in Maryland, nor are they the 
doctrines of this place. Considering that he has come all the 
way from Maryland to enlighten us of the Virginia bar by his 
great talents and erudition, I hoped he would not have ad« 
vanced a doctrine which would have been abhorred even in the 
most turbulent period of the French revolution, by the jaco- 
bins of 1794! It is the duty of the president to call out the mi- 
litia to suppress combinations against the laws, (see L. U. S* 
vol. 3. page 189.) and particularly to prevent 'enterprizes 
against foreign nations in amity with the United States ; (ib. 
page 92.) Yet it is contended, that his orders, for such pur- 
poses are illegal, and may be resisted by force of arms! I will 
not say it is treason to advance, or a misdemeanor to believe 
such doctrines ; but deplorable is the cause which depends on 
such means for support*. Suppose, however, the president was 
misled, and that Mr. Burr was peaceably engaged in the pro- 
ject of setding his Washita lands; will it be contended, that he 
had a right to resist the president's orders to stop him? I say 
this would be treason. If congress were to pass an arbitrary or 
oppressive act, but not unconstitutional, (such as the excise law, 
for example) it has been decided, that an armed combination to 
resist it would be treason. Of course, resistance to the execu- 
tion of the statute, under which the president was acting, would 
be treason, ^he president receives information, that a law of 
the United States is about to be violated; he issues orders to 
enforce the law in the way prescribed by itself. Is not opposi- 
tion by violence treason? Will the gentlemen, after seriously 
reflecting, still contend that Burr had a right to resist? This 
doctrine is not the growth of this country, nor is it the doctrine 
of the real friends of human liberty : but this is a new-bom 
zeal of some of the gentlemen, in defence of the rights of man. 
No wonder, therefore, they are not so well acquainted with 
the subject as those who have always contended, and always 
will contend, for them. But admit their inference correct; that 
Burr had a right to resist an illegal order; (which I utterly 
deny) will the court is3ue a subpoena founded on that suppo- 
sition? Will you insult the executive by saying, that its orders 
were illegal, and ought on that account to be produced as evi- 



152 

deace? especially after you have younelf said, that there was 
probable cause for committing colonel Burr on the charge of a 
misdemeanor i 

Mr. Hay proceeded to argue another point, that the court 
ought not only to be satisfied that the letter was material, but 
that it was a public paper* He said, if it was a public document, 
the right to a copy of it was admitted, unless there should be 
aomethino; in it, which, in the opinion of ^e president, the pub- 
lic good forbade to be disclosed. But he denied that the letter 
was a public paper merely because addressed to the president of 
the United States. It had been observed, that the president had 
made it so by referring to it in his message to congress. If this 
argument is correct, only so much is public as is referred to.^ 
^Here Mr. Hay read a part of the president's commimication to 
congress.] He contended, that there might have been a great deal 
more in that letter than what related to the discovery of Burr's 
plans; that there might have been information of a private na« 
ture, accounts of the disposition of the people in the western 
country towards the government, and general Wilkinson's 
thoughts on many important subjects. Will the court say, that 
all these things shall be made known? If a copy was received, 
such parts only could be extracted as ought to be made public; 
but if the original should be granted, the whole would be seen 
and inspected by the court, by the counsel on both sides, and by 
the public. He said, that the court ought also to be satisfied, that 
the president has the custody of this letter. The subpoena ought 
to be addressed to the person who has it in his custody. It is 
said to be a public document: if so, it is in the office of the secre* 
tary of state. See L. U. S. 1 vol. p. 42, 43. 

It is absurd then, as well as indecorous, to summon the presi- 
sident of the United States to bring a paper which he has not. 
The same observations applied to the copies of orders. The ori- 
ginal orders were lodged with the secretary of state, and copies 
were sent by him to the secretaries of war, and of the navy. 
To the secretavy of state, therefore, the subpoena ought to be is- 
sued, if at all. 

The court ought also to be satisfied that the party could not 
obtain, without a motion, the copies of the orders now required. 
The accused ought therefore to show that he has demanded co- 
pies ; but he has not done so. He asked indeed, a copy from the 
secretary of the navy; and because he refused, process is to be 
issued against the president of the United States, though he 
was never applied to ! 

The Chi«f Justice asked Mr. Hay, what was the legal way 
of getting the paper which the secretary of the navy refused ^ 
He answered, ^^ by application to the secretary of state for copies.'' 

Mr. Hay made many other observations which the limits of 
this sketch wrll not permit us to ixiseru In opposition to the ar-r 



153 

gument that general. Wilkinson might deny any recoUection of 
his letter if a copy only was produced, he said it was mere pre- 
sumption, a preposterous supposition ; that it would be immate- 
rial whether he deified it or not, since the copy is evidence by the 
act of ccMigress. He here vindicated general Wilkinson from the 
attacks which were wanto^y made upon him; saying, it was the 
policy of colonel Burr andhis counsel to endeavour to tear down 

J his character before he arrived, and that every principle of pro- 

priety was violated by such conduct. He fwked, if it was right 

j that a man, high in die confidence of government and of hi^ 

country, should be thus attacked? and declared he should be 
sorry for the character of his fellow citizens, if the abuse lavished 
on him by the accused should have the slightest effect on the 
event of the trial. 

Mr. Mac Rae said it wasplainly to be inferred from the pre- 
sident's message to congress, that the letter in question was con- 
fidential. It appears, that the president furnished extracts of some 
of the letters he received relative to colonel Burr. His not fur- 
nishing congress with a copy of this or any other part of it, is. 
presumptive evidence that it ought not to be made public. 

Mr. Randolph. — May it please your honours: To the ob- 
servations I shall make, I have no preface nor apology. I beg 
leave to appropriate to argument the time which falls to my lot 
in the discussion of the present moUon. I did not believe sir, that 
to-day there would have been a resurrecdon of the dicussion 
which took pli^ce yesterday; but since the attorney on the part 
of the prosecution has thought proper to introduce it, I shall not 
shrink nx>m it, but meet it. I make no appeal to the multitude; 
it is not my desire to excite the sympathy, or rouse improperly 
the feeCngs of the bystanders. I shall simply state the proposi- 
tion. Why is colonel Burr not entitled to ask the court to is- 
sue a subpcena for the production of those papers? Is colonel 
Burr not now before the court ? Is he not here upon his recog« 
nisance? Has he not been here a considerable time on the ten- 
terhook of expectation, that when general Wilkinson, that great 
accomplisher of all things, arrived, an indictment would be pre- 
ferred against him ? But has he, on that account, resigned the 
rights of defence ? Is he to be tongue-tied and hand-ded, without 
the privilege of defending himself? He cannot be properly de- 
fended without the production of these papers, and on that ac- 
count he now demands the interposition of the court. But, say 
the counsel for the prosecution, he is not entitled to this privi- 
lege until an indictment is preferred, and the grand jury find a 
true bill. ^Why did we not hear this objection ,when the grand 
jury were empaneled? It was proved yesterday, by several la# 
authorities; it was proved, sir, by invariable practice ; and it wa^ 
Vot. I. U 



15* 

proved, by a wish of all out* souls, duit the accused ought to haver 
this privilege from the very cottunencefkient of the prosecudoii.^ 
Wherefore then sir, are we^to be vexed and perplexed again with 
this ofcgection ? Wherefore do they say it is premature on the 
part of my client? I see a corps of worthies around me, to jus- 
tify what I say. Every man, I assert, liho appears on the grounds- 
of as^recognisance, stands in the same conaition as one on his 
triaL Are you to shut a man out from evidence, because he is- 
only Recused, because his- life can only be forfeited I There is a 
harshness in this ; there is a severity in this sentiment, which, 
however agreeable it may be to the pfincif^es of law, I have to 
thank God, has never been my practice. The principles to which- 
I have been accustomed have always agreed widi trudi, and the 
sacred books of the scripture. No bill is yet found; and I trust 
none ever ^i|9U. The amendment^to the colistitution, they say, 
does not apply to the present case, but to a triaL We do not 
mean to force this point, although ample audiority might be pro- 
duced in support of it. You, sir, will certainly do what is right 
in the present motion; this we do not mean to doubt : but youi 
will give me leave to ask, what our situation would be, in what 
a deplorable dilemma we should be placed, if,* at the instant the 
attorney was pressing us with his testimony, we had to supplicate 
your honours to grant us the purport of the motion now in ques- 
tion ? and if the trial could not be postponed, (which in all proba- 
bility it would not) we mueft go to a final decision without it. In 
that case, even were the sun of innocence ready to shed his 
beams upon us, we would be cast into utter darkness. No, sir, 
such can never be the opinion of this court; justice must be 
changed; bnv must be changed; nature must be changed, before 
such sentiments caii be heard. I will not trouble you much farther 
with discussing the propriety of our application^ feeling the con* 
iidence with which I am certain it is regarded by thi^ court; bot 
I will come directly to the consideration of whsrt are the reai 
points in discussion. 

This is not whether a president cm be summoned: that par^ 
k happily conceded; and I rejoice that we mistook in the com- 
mencement of the argument, the sentiments of the attorney on 
the part df the prosecution on this point. I rejoice, I say, that I 
did mistake.him; because, from that very concession, I will draw 
every corollary that may be necessary for establishing the great 
point for which we contend. By admitting that the president of 
the'United States can be summoned, a great canon of evidence 
is admitted. I must, however, be excused by the worthy gentle- 
men, if I tell them they are a litde inconsistent. In throwing ob- 
stacles in our wa- against obtaining the papers for which we have 
moved the court to issue a subpoena,, they imitate that bad ex- 
ample, which they have imputed to us. What is the nature of 



ISS 

ftc evidence we do ask i We ask for that sort of evidence which 
may enable us to confront James Wilkinson with himselfL There 
is not an idea beyond this. We wish to show, that James Wil- 
kinson, in his oflScial capacity, as commander pf the army of the 
United States at New-Orleans, is not the same with James WiU 
kmson the correi$))ondent of the president. We wM\ to prove, 
. that James Wilkinson has varied from himself, and that he has 
varied in most essential points in the greatest degree. Mr. Hay 
teUs us, that every thing depends upon diis same James Wil- 
kinson; that he is in reality the Alpha and Omega of the present 
prosecutiotk He is, in short, to support by his deposition the %ing» 
song and the ballads of treason^ and conspiracy, which we have 
heard delivered from one extremity of the continent to the other* 
The funeral pile of the prosecution is 'already prepared by the 
hands of the public attorney, and nothing is wanting to kindb the 
fatal blaze but the torch of James Wilkinson. He, k ta exhibit 
himself in a most conspicuous point of view in the tragedy which 
is fancied 'will take place* He, JamestWilkinsoo, is to ofliciate as 
the high priest of diis human satrifice^ 

Of James Wilkinson we are not afraid, in whatever shape he 
nay be produced; in whatever ferm he may appear before this 
court. We are^only afraid oi those effects which desperation may 
produce in his mind. Desperation, may it please -the court, is a 
word of great fitness in the present case. General Wilkinson we 
beheld first acting as a conspirator to issnare others, afterwards 
as a patriot to betray others frem motives of patriotism. What 
must be ihe embarrassment of tMs man when the awful catas- 
trophe arrives, that he must either substantiate his own inno* 
oence by the conviction of another, or be himself regarded as a 
tndter ii»d conspirator, in tiie event of the acquittal of the 
accused. 

Is it not to be suiqsosed, that f;|lheral Wilkinson will do many 
things rather tiiao disappoint the wonder-seizing appetite of Ame* 
^rica, which for months together he has been gratifying by 
^ most miraculous actions ! If I am not anistakeh I have seen it 
in some of the public prmts that he is no longer the vice-gerent 
of the Upper Louisiana; and if I may be indulged with the slight- 
est power of prophecy, I may predict, that this same general 
Wi&inson, who has been astonishing the citizens of New-Or- 
1&U06 with plots and conspiracies, will, before maiiy weeks, only 
figmne in the capacity of a private citizen. I shall not say that 
generri Wilkinson would commit peijury; let me not be under- 
stood as making such an assertion; but if I know human nature; 
if I understand the feeling of the human breast; if I have the 
lightest biowledge of those prinoii^es which govern the mind 
of man; I may be aOowed to affirm, that every feeling would be 
asleep in his breast if he did not use every exertion in his power 



156. 

tot the conviction of colonel Burr. Upon the conviction of cold* 
nd Burr, upon the guilt I say of colonel Biirr, depertds the inno-»^ 
cence of general Wilkinson. If colonel Burr be proved guilty^ 
then indeed general Wilkinson may stand acquitted with many 
of his countrymen; but if colonel Burr be ilot found guilty, the 
character, the reputatipn, in short, every thin^hat deserves the 
name of iiitegrity, wiU be gone for ever from general Wilkinson* 
Sir, in that event, I say, in the event of Burr's acquittal, as sure 
as man is than, storms and tempests will cover the western glory 
of general Wilkinson, and gather darkness all around him. We 
have therefore the justest cause to scrutinize this gentleman's 
deposition. We have the strongest reasons to examine this gen- 
tleman's character, and to trace him in his most confidential 
walks. From his letters we have already had some glimpse of 
him; but I should wish, as I have;said, to have him confronted 
with himself; I mean, to have his correspondence with the presi- 
dent of the United States opposed to whatever statement he 
may deliver here. I shall therefore suppose, by way of illustra- 
tion, that the president were here, and certain questions were put 
to him. The president certainly could not dispense with answer* 
ing these questions* Much as I respect the illustrious character 
of the president of the United States, yet I should begin to ima« 
gine that the sheet-anchor of our government was gone, if the 
president could be excused more than any other individual before 
this court, from answering any questions which might be put to 
him. It is really most extraordinary, that these gentlemen should 
tell us, after arriving in the porch of the temple, that we shall not 
go into the sanctum sanctorum; that we are at liberty to know 
part of the correspondence, which has taken place between gene- 
ral Wilkinson and the president of the United States, but not 
the whole^ 

The gentleman for the prosecution has to-day, sir, given us an 
eulogium upon himself and his associate friends. He has pic- 
tured to us the zeal and the anxiety he has had for the produc- 
tion of those papers, and has assm-ed us that he has already ta- 
ken means for having them here. I thank the gendeman for his 
exertions, but at the same time I must beg leave to remarjc the 
equal zeal with which he and his friends combat our applicatian. 
If Mr. Burr were now asking you for the^e papers, without 
showing any probable cause that they were material, this indeed 
would be a wanton, womanish, feverish curiosity; but it is no 
such curiosity: we have shown, in the fullest manner^ that they- 
are material and of the first importance. It is said, that by their 
production general Wilkinson, that huge Adas, on whose mighty 
shoulders the American world is sustained, is wished to be re- 
presented as a man in whom confidence ought not to be placed. 
But, I say, if the production of these papers were to effect the 



157 

annihilation of general Wilkinson, that I hope and believe no 
other visible chasm in the creation would be ' produced, but in 
that portion of space at present occupied by his material body* 
How can the rank and safety of general Wilkinson be concerned 
in the production of these papers? General Wilkinson is only an 
organ in the hands of government. As to his glory, I believe 
its meridian splendor is set, and that he will be no longer wor- 
shipped as the political Messiah of America; but even if he were 
crucified, I trust it would make no sera in our time. Suspicion 
at all events belongs to him. He stands in that character which is 
always regarded as odious; that of an approver. He has confes- 
sed himself guilty of the most heinous of crimes, for the purpose 
of entrapping others; of rendering others equally in£Eimous with 
himself. 

We are told, that our motion goes to reveal state secrets; 
that confidential characters are to be brought into view! State 
secrets! The very name strikes me with horror! I have heard 
one of the gentlemen concerned, renounce the idea, and I shall 
not again be the means of recalling the principle. Sir, I will 
not say that there ought not to be a limitation with respect to 
the production of state papers. But in what character is the 
name of general Wilkinson inscribed in the roll of fame, to en« 
ude his actions to be concealed? Is the safety of this country 
.to be endangered by calling upon him as a witness, who is 
known and declared to be one of the arch-witnesses of this 
prosecution? Is the national safety to be endangered by thisf 
A nation stand upon this? a nation which ought only to look 
to the Almighty for its rule! Shall the people of this countrj;; 
be considered as in danger, though this motion be granted^ 
Should they be in danger, though general Wilkinson were 
given up to be buffeted? I should be very unwilling indeed^ 
diat a single name should be unnecessarily exposed; but are 
one man's fortune, character and life to be brought into jeo- 
pardy in order to conceal the names of others? Is this to be 
the shield under which general Wilkinson is to be screened? Is 
the executive bureau to be made a sanctuary of scandal, to pro- 
tect the fame of general Wilkinson, and when opened at some 
future period, to display to the citizens of this country, a tale 
perhaps as horrid as many of those which the red book of 
France has unveiled? The revealing of confidential secrets has 
also been objected to. Two cases of this nature were yesterday 
ably detailed by the counsel associated with me. The case of 
lord Barrington, and the surgeon, whose evidence was given 
on the trial of the dutchess of Kingston ; but, sir, I have seen 
within the walls of this house, a case still more affecting; a case 
in which, if ever confidential secrecy was to be pleaded, it 



158 ^ 

ought then to have been sustained* This, sir, was the case of a 
young lad of sixteen years of age, who was arraigned at lUs 
bar for a criminal offence. His infant mind, and the feelings of 
his heart, had been unburthened to his father alone. He, led 
by patemid affection, was anxiously attending at the side of the 
lad, at the issue of the trial. The attorney for the state, after 
fruidessly examining all the evidence for die prosecution, and 
finding no testimony sufficient to sustain it, at length darted his 
keen and penetrating eye upon the distressed parent. He im- 
mediately made an application to the court to compel him to 
give evidence against his son. The court were greatly affected ; 
tears streamed from their eyes. I defended him. I do not 
know that I used any reasoning on the subject; but the close 
ties of father and son, and the nature of confidential secrecy, 
were in vain pleaded. The court determined that he was a 
competent witness, and must be sworn to testify; and wer« 
about to compel the father to give testimony against the son, 
who on this testimony alone would have been convicted. The 
father approached the book, and was going to swear; but, for 
the honour of Virginia, the records of the state are not blotted 
with so sanguinary a sentence. The scene was so truly affect- 
ing, that at the recommendatioh of the court the demand for 
his evidence was not persisted in. But is general Wilkinson 
the child of the president of the United States? Is the presi« 
dent to be viewed as the father of genersil Wilkinson? Is Mr. 
Jefferson to fafe placed in the same situation with respect to 
James Wilkinson, as the parent I have mentioned, with regard 
to the boy? Are the hearts of Mr. Jefferson and general Wil* 
kinson connected by the same tender ties of sympathy, as 
those of a father and son ! The law is, that every man, who 
is not interested in the event of a cause, is a witness, and 
bound to g^ve his testimony when called on, except in cases of 
professional confidence. 

The objection to the insufficiency of the affidavit is unfound- 
ed. It is a work of supererogation to make tt at all. It was not 
necessary to entitle us to msdce the president disclose the pa- 
per. It is evident, without it, that he ought to produce it. We 
proceeded in this by way of frank accommodation to prevent 
the necessity of his attendance. As they deny, we insist on the 
right to draw this paper from the president's pocket. [Here he 
expressed a hope that he had not misunderstood Mr. Wirt, 
concerning the necessity of the affidavit. Mr. Wirt repeated 
what his argument had been, and the chief justice stated that 
the impression of the court was similu".] A man ought not to 
be precluded from evidence which he thinks materisd, though 
he does not inow it to be positively so. If the paper were not 
in a bureau of office, we should want no subpoena duces tecum* 



159 

It stinds on the same groimd as m comiBon tubpceat, and we 
hftve die same right to nave it, as to have a common subpoena. 
Bat the object being to obtain the paper only, if it be trans- 
mitted and found to be different from what it has been re- 
presented to be, the witness would then be excused from at* 
tending. 

If our affidavit stated the materiality of the paper, and yet 
die paper should be found to be otherwise, we should then 
have to encounter the full torrent of Mr. Hay's invectives, for 
having incautiously sworn to what was incorreot» although the 
affidavit stated the fact precisely, as Mr. Burr had every just 
reason to believe it. Mr. Burr desires to obtain this paper, but 
he knows not its contents: he cannot say what is in it, but we 
have the holy word of the president himself, that it relates to 
colonel Burr. This is one of the few things which he has done 
wrong^. The president testifies, that Wilkinson has testified to 
him rally against Burr. I am absolved from all scruples on 
this subject. I have a right to demand peremptorily Wilkin- 
son's letter, when it is said that it will prove Burr's guilt. The 
president's declaration of Burr's guih is unconstitutional. I 
deny his right to make such a declaration against any man, or 
to make such an inference from statements made to him. The 
constitution gives him no such right; and its exercise by the 
president would be dangerous. It may and must excite unjust 
prejudices, and create a powerful influence against a man who 
is really innocent. The constitution very wisely withholds from 
the president a power so unfavourable to a fair trial between the 
pubKc and individuals accused, and so dangerous to the liber- 
ties and lives of the citizens. I hope it is no rebellion, but I 
hope our objection to this dangerous and unconstitutional de- 
daration of the president, will be handed down to posterity, to 
prevent his conduct in this respect from being imitated. Con- 
cress did not call upon him for his opinion. They would have 
oeen satisfied with his statement of public transactions, without 
his opinion. He is to see that the laws be faithfully executed^ 
and to g^ve information with respect to the state of the Union; 
but he is not to give opinions concerning the guilt or innocence 
of any person* 

A copy of this letter would do in every other sense, or for 
any other purpose; but the original must be produced to Wil- 
kinson, otherwise he might deny it to be his. If a copy were 
produced, he might deny that he had written, and on every 
correct principle of law demand the production of, the original. 
He would look towards the city of Washington, and consider 
the consequences of testifying here. He would consider, how 
the government would view his conduct. He might know it 
to be a true copy, and yet be afraid to say so. Perhaps there 



i6d 

might be inductaieiits for him not to deny it : but suppose he 
were to deny it at the trial, could you discharge the jury till the 
original was brought? No sir, you could not; and every objec* 
tion would be made and sustained against reading the copy. 
Original papers only, have ever been admitted as evidence in pe» 
nal cases. There is no instance of a conviction, in a capital case, 
on the copy of a letter as evidence. The case of Smith and Og- 
den is egregiously misunderstood on this point* [Here Mr. 
Wirt explained* Mr. Randolph read the case and proceeded.] 
The affidavit was wanted there to put oiF thetriaL To postpone 
a trial, the utmost precision (precision ad unguent) is necessary; 
but on a motion to take testimony, belief is sufficient. 

I believe that Mn Jefferson ought to hasten to produce that 
paper. His regard for the promotion of public justice ought to 
mduce him to do it. His character requires that he should pro- 
duce it. Lest that character should suffer, I would almost ask 
it for his sake. Gentlemen say, why do we not rely upon lum, and 
demand it of him ? I answer, that without the orders of this court, 
the prospect of obtsuning it is very unpromising, after we have 
made an application to one of his secretaries, (Mr. Smith) and re- 
ceived from him a positive and peremptory denial, with a declara- 
tion that the orders were intended for the officers alone who were to 
execute. Mr. Van Ness had said, that there had been a promise 
made tp furnish it to colonel Burr's counsel; but the promise 
has not been performed. The orders could not be secret, since 
they were published in the Natchez Gazette. Can there be any 
hopes then of obtaining them from the president himself? Time 
has been taken, and he has very probably been consulted. Mr. 
Hay is not authorised to produce the papers, although he has 
some of them. As then it is probable, that the heads of depart- 
ment have been consulted, in the time which has elapsed since 
our application was made; as the secretary of the navy has re- 
fused to furnish these papers, and the attorney will not permit 
us even to look at the papers in his possession, I trust we shall 
be excused for not applying to the president, without the order 
of this court. 

It is again said, that this letter is confidential. I must revert to 
the president once more. He is but a man, has ears and eyes, 
and can see and hear like another man; he maybe a witness like 
other men; he has no prerogative to have any secrets, the with- 
holding of which may go to the destruction of the dearest inte- 
rests of an accused man. Mr. Hay has been pleased to call the 
affidavit ^^farcicalJ^ I wish he had been so good as to tell us how 
he would have had it drawn. [Here he read it.] Mr. Burr has 
indications that it is material. The president, in his message to 
congress, in announcing the doubtless guilt of Mr. Burr, has 
made himself judge and accuser. The opposition now made to 



161* 

its production justifies the opinion, that the letter contains more 
than has yet been disclosed; that there is something more be- 
hind the curtain. Sir, I contend that when the dearest interests of 
a feUow citizen are involved, the president's cabinet is not too 
sacred to be examined and exposed to view in a court of justice. 
I know that the present president abhors such conduct; but 
would you permit a future president to hunt down any man by 
proclamation, declaring him to be guilty of treason, and with- 
holding a part of the facts, on which his opinion is founded f 
This puts an engine into the president's hands to destroy an 
enemy, by giving a partial statement of facts, while he publishes 
the most unfavourable opinion of him. Mr. Hay indulges him- 
self in little verbal criticisms; he says that ^^ may be material^ 
is the same thing as ^^ may or may not be materiaL^^ Sir, Mr. 
Burr believes that they mayh^ material. With this impression, 
he has made the affidavit, which in my opinion is sufficiently ex- 
plicit, If an affidavit be at all necessary. Something has been said 
of unmasking our defence. Do you wish us to tell general Wil- 
kinson all the grounds upon which, he will be attacked i We only 
say, that he is grossly inconsistent in his disclosures, and that he 
will be contradicted. We cannot go further while the contents 
of his letter are unknown to us. 

But Mr. Burr's affidavit is not to be attended to, because h|e has 
feelings and maybe misled by them! It is the same thing with every 
odier man. Because a man is interested, he is more ready to 
make known to the world his injuries and assert his innocence. 
But I must notice that part of the argument, relating to these 
orders of the government, wherein my friend Mr. Martin was 
charged with speaking treasonably. This has raised an amazing 
clamour. I added, the other day, the illegality of these orders, as 
then understood by me, to the other causes of dissatisfaction with 
the conduct of the president. But I now learn that these orders 
were worse dian I expected : that they were to bum, kill and 
destroy the person and property of Mr. Burr and his party. 
Whether the orders were exacdy to this effi^t or not, I am not 
sure; but I believe this statement not to be very incorrect, and 
the refusal of gentlemen to produce them proves that there is 
sooiething behind; or why does not the attorney produce the 
copy he has in possession ? Mr. Martin never did say (as I un- 
derstood him) tliat these orders justified an opposition to the 
government of the United States. Whatever he did, we shall 
contend was legal, and not in opposition to the government. But 
I will say, that if the president had called out a military force, 
iUtgtdly^ to destroy the person or property of any man, that man 
had a right to resist. The orders to destroy the person and pro- 
perty of Mr. Burr, if given, were unconstitutional and unjustifi- 
able. If I am wrong in my statement \ pray to be set right ; but 
Vol- 1. X 



162 

if I reooUect the constitution correctly, it does not jusdfy such 6r- 
ders in such a case as this. It only ein|x>wers congress ^^ to pro* 
ride for calling forth the militia to execute the laws of the Union, 
and to suppress insurrections and repel invasions.'^ The presi*« 
dent is sworn ^ to preserve, protect and defend the constitution, 
and he is to take care that the laws be faithfully executed." ^^ The 
United States are to protect each state against invasion and 
against domestic violence, on application of the legislature or of 
the executive, when the legislature cannot be convened." The 
president is to call out a military force oi^ to suppress insurrec- 
tions or to re{)el invasions. Was this either i There certainly was 
no invasion of our country by a foreign nation. If there had been 
an insurrection, the state governments might have interfered* 
Was there any application for ud by any state government^ 
There is a third case, it must be admitted, in which an armed 
force may be resorted to. I mean infractions of the law of na* 
tions, by armed vessels. These are the only three cases in which 
the president is, or can be authorised, by the law of congress un« 
der the constitution, to call out a military force; and as none o£ 
them occurred, those orders were Hlegal and uiyustifiable. 

Chief Justice. — ^Does not the law of congress authorise the 
president to call out the militia to suppress an expedition against 
any foreign state in amity with the United States I 

Mr. Wirt said, that the act of congress, passed in the year 
1794, expressly required the president to employ military force 
to suppress or prevent any such expedition. 

Mr. BoTTs said, that colonel Burr could not say more posi- 
tively than that ^^ it may be materiaL^^ That as lie did not know 
what evidence might be adduced against him, it could not safely 
be otherwise expressed. 



n 



Chief Justice. — ^Could not the word be changed to ^* xviU. 

Mr. BoTTs«-— For the sake of precedent I wish it to remaia 
as it is. 

Mr. Wirt. — If the word ivHl were to be inserted instead 
of ^^ may be^^ ithe objection to the generality of the affidavit 
would sull remain. 

Mr. Martin. — Agreed; but we will speak of that hereafter. 

Mr. WiRT.--»Examine the letter; it only goes to the guilt of 
Burr. How can it confront Wilkinson, if it speaks of the guilt of 
Burr? 

Chief Justice.— But there may be contradictory statementa 
of guilt 



i 



163 

Mr. WiKT.— But the prima facie evidence of this letter is, 
that it charges guilt; but there is no evidence of contradiction; 
diere are only vague insinuations. The law of congress authorised 
the president to act as he did. By the 7th section of this law, 
^ the navy or army of the United States may be called out to 
take such ship or vessel," and also for the purpose of quelling 
any force raised for carrying on any expedition against any 
country with which the United States are at peace. 

Mr. Randolph proceeded. The object of requiring the oiv 
ders to be produced is, to ascertain whether they be conformable 
to the law; and no power to call out the militia in the commence^ 
ment of an expedition^ or in beginning to prepare the means^ iik 
given by the law. I will suppose, for a moment, what I utterly 
deny to be the feet, that colonel Burr had actually begun an ex- 
|)edition, had prepared arms, vessels, men, &c. ; yet, as penal laws 
are to be construed stricdy, he could only be stopped under this 
kw, when the expedition was actually formed and carried on» 
But it is insinuated to be improper to ask the president, and not 
the officers of government, for those papers. The president is 
the person who must be considered as having refused the papers. 
All the officers act under him and must obey him. Application 
should be made to the department of state. The chief justice 
said that the de:partment of state ought not to be apphed to» 
{See Mr. Hay^s argument.^ As to the letter, it must be in the 
president's bureau; for, as tar as we can discover, it is directed 
to him, and he withheld it from the legislature. But it is asked, 
what is to be done with the letter, if parts of it are net proper to 
be expoaed? This is a most extraordroary objection. Shall we be 
leiused the parts important for our defence, because other parts 
are improper to be published? An arrangement could easily be 
made, i^ which only those parts which are proper to be disclosed, 
should be nsed. 

Sir, I must make a few remarks with respect to your exhorta- 
tion, and what was said by gentkmen yesterday and to-day. 
We have been charged with the policy of exciting {>re|udices 
against the administration, rather than defending Mr, Burr. 
Hints were also thrown out as to popular opbion. Sir, I never 
defend my client by popular prejudice. I know it would be in 
vam to attenpt it. I know who has got the windward of me. 
They have the public approbation strongly in their fayour. I 
blow ho^ impotent is one individnri, when opposed to the power 
flf the ^vemment* But I hope the arguments we have been 
compelled to ose, will have their due weight with the court. The 
g gw i ti c magnitude of the crime chaiged against us, is diminish- 
tfig every day; and we have nothing but an interested man, 
whose ail is att sitake, to c^ipose us« We demand justice only, and 



164 

if ybu cannot exorcise the demon of prejudice, you can chson 
him down to law and reason, and then we shall have nothing 
to fear. 

Mn Wirt.— As to the denial of the law by Mr. Randolph, 
and the gendeman from Baltimore, I insist that they are mis- 
taken ; and that the law is as I have stated it to be. The respect 
which I owe to this court, would prevent me from asserting for 
law, that which I do not know to be law. Mr. Randolph has 
enumerated three cases, in which force could be used, and then 
sat down majestically and called the giant to be produced at once. 

Mr. Martin endeavoured to explain, by saying, that he had 
not said that there was no such law. 

Mr. Randolph explained. 

Chief Justice.— «The truth is, that you did not advert to 
the law. 

Mr. Botts observed, that Mr. Wirt had said, that the hw 
justified an order to kill Burr and his party, without trial or 
condemnation. 

Mr. Wirt denied it. He had only said that there was such 
a law. I mentioned it before, said he, and I pointed to it after- 
wards. I feel my candour impeached by the course which gen- 
tlemen have thought proper to take. If the court should doubt, 
as to the construction of the act of congress, I should wish to be 
heard further on the subject. 

Mr. Randolph said, that he meant nothing personally against 
Mr. Wirt; but he had said that he knew no law that was appli- 
cable; and he now insisted, that the law was as he represented. 

Mr. Mardn asked leave to speak again; and the court was 
ndjoumed till to-morrow. Note. The grand jury was adjourned 
till Saturday. 

Friday, June 12th, 1607. 

The court met according to adjournment. 

Mr. Maktin addressed the court to the following purport: 

I shall now, may it please your honours, make a few observa- 
tions, in which I shall endeavour to avoid all extraneous matter. 
This has been uniformly asserted by the genUemen for the pro- 
secution, to be a motion addressed to the discretion of the court; 
and in some degree admitted by the counsel with whom I act. 
But the practice in the state from whence I came (Maryland) is 
different. A subpoena duces tecum is never applied for in court. 
It b issued of course by the clerk, acquiesced in by the parties 



165 

and counsel, approved by the court, and never opposed. Accord- 
ing to that practice, Tand which gendemen wiU excuse me for 
mentioning, as they have so repeatedly called on me to state 
whether I had known such a process to issue in such a case) the 
right of the prosecuting counsel to oppose the demand of the ac« 
cused is denied; and it is no more competent to them to do this, 
than to oppose the granting subposnas for living evidence. It 
would b^ deemed highly indecorous to make such an opposition* 
They ask us the reason why we make this motion. We tell them, 
that the object of the accused, in demanding the production of 
general Wilkinson's letter, is, that we may compare its purport 
with that of communications which he has made to others. If 
he has made inconsistent or contradictory statements, and we 
can prove that he has done so, we certainly have a right to avail 
ourselves of it, to lessen or destroy his credit. But its production 
is opposed on the ground of its containing state secrets; and that 
it may expose the names of others presumed to be implicated. 
Is this exposure to be prevented at the hazard of Mr.- Burr's 
life? Innocence cannot suffer by exposure: guilt ought to be de* 
tected. What, sir, shall the cabinet of the United States be con* 
verted into a lion's mouth of Venice, or into a repertorium of 
the inquisition? Shall envy, hatred, and all the malignant pas* 
sions pour their poison into that cabinet against the character 
and life of a fellow citizen, and yet that cabinet not be examined 
in vindication of that character and to protect that life? Shall a 
citizen be privately accused, and the name of his accuser not 
even made known to him? No more of the letter is sought to 
be used as evidence than relates to the accused. When the letter 
is produced the court can judge of it, and withhold from the 
public any secrets which ought not to be disclosed. The mere 
possibiUty of its containing state secrets is no reason why 
there should be a suppression of what is no secret. Gendemen 
ten us, that they are perfectly willing we should get it; and 
yet they throw impediments in our way to prevent us from 
getting it! 

Mr. Hay declared that he had written for the letter, and had 
done every thing in his power to obtain it; though gendemen 
seemed disposed not to credit him. 

Mr. Martin.— -If we were certain that the gendeman would 
succeed in his application, we should be disposed not to trouble 
die coart with this motion. But can we depend on his success, 
when the gentleman tells us, that when the papers come he will 
not let us look at them. What will be our situation after the 
trial is begun, if the papers do not come? It will be then too 
late to move for a postponement; and we shall lose the evidence. 
We are entitled to it now, and ought to have it. I cannot say 



166 

dntt I Jeel disposed to rdy much on the favours of as adverse 
party. ** Timeo Danaos et dona fertniea*^ I prefer the. enjoy- 
ment of my certain rights, to the promises of him whose interest 
10 opposed to mine. 

But we are told that there ought to be respect between the 
departments of government; that we ought to respect the pre-^ 
sident. Is it derogatory from that respect, to issue process to 
obtain necessary testimony from him? WUl the president think 
himself insulted by the demand of a mere document? Can be 
possibly thinlc it disrespectful? But suppose he should, is the life 
of a man, lately high in public esteem, not indeed the first, but 
the second citizen in our country, to be endangered for the sake 
of punctilio to the president of die United States? Sir, , we ap- 
peal to the Supreme Maker, that we only wish justice, and fear 
^nly perjury* We approach, with uplifted hands, the sacred altar 
of justice, as a sanctuary to screen us, not Irom just punishment, 
but from unjust, rancorous persecution! and from this sanctuary 
we confidently expect protection. 

But we are told, that a copy will be sufficient. But will the 
copy show that the original is not a forgery? It may prove, that 
there is a paper, of which it is a copy, deposited in the office; but 
it will not prove, that the paper so deposited is the hand writing 
ef general Wilkinson* If general Wilkinscm wrote a libel and 
sent it to the president, would a copy be admitted as evidence 
against him on a prosecuuon for the libel? Copies are never ad* 
mitted as evidence in prosecutions ior hbeb, or in any criminal 
prosecutions. But gentlemen say, that general Wilkinson would 
not dare to deny that he had written it, if the counsel agreed 
that it should be evidence. Woidd that make it his hand writ* 
ing? General Wilkinson has already violated his oath, in wilfully 
and tyrannically violating the constitution which he had solemnly 
sworn to support. Has he not exercised the moat wanton mih* 
tary despotism? Has he not insultingly resisted and trampled 
under foot the constituted authorities, in disobeying the writ of 
habeas corpus? Has he not done all these things in open defiance 
and in palpable violation of the plain letter and meaning of the 
constitution? He comes here to justify these misdeed^. A mas 
who has done a series of bad acts will not fail to add one more, 
in order to conceal them from view, and secure himself from 
punishment. Though he is the pivot on which the prosecution 
turns, and therefore the counsel for the United States uphold 
bim, colouel Biur has not confidence in the honour or integrity 
ef general Wilkinson, to trust his life to his veracity. But it is 
said, that if he should deny it, then we can send for the origiaaL 
He would have no occasion to deny it, tiH the jury were sworn 
to try colonel Burr; and if die testimony on both sides were 
equal) and the scales of justice hanging even, the deniiJ cS genr- 



167 

ral Wilkinson pat in the scide against us, would prqxmderate; 
it would be then too late to send for the original, to confront 
and disprove his denial ; the ^^Jiaf^ of life and death, must be 
determined by the evidence before the jurvr we ought therefore 
to get the original now* 

But the gentleman asserts, that we have made the motion in 
order to glance at the president. We disclaim such motives. It 
would be dastardly to make a court of justice the scene of de* 
traction; the means to abuse individuals^ We deny such motives; 
aor are gentlemen warranted in imputing them to us* 

But the gentleman has tokl us, that respect ought to be paid to 
the officers of government. It is granted. I once thought so. I 
thought that the officers of government ought to be treated with 
high respect, however much their conduct ought to be the subject 
of criticism; and I invariably acted according to that principle. 
If I have changed my opinion, I owe it to the gentleman him- 
self, and the party he is connected with. They formerly thought 
differently. That gentleman and his friends so loudly and inces- 
santly clamoured against the officers of government, that they 
contributed to effect a change in the administration, and are now in 
consequence basking in die sunshine of office; and therefore they 
wish to inculcate and receive that respect which they formeHy de- 
nied toothers in the same situation* We have a right to inspect 
the orders issued from the war and navy departments; because, if 
Aey were illegal, we had a right to oppose them. If they were 
unconstitutional and oppressive, it was rig^tto resist them: but 
this is denied, because we are not trying the president. God 
forbid, we should* But we are tr)aBg if we had a right to resist. 
If every order, however arbitrary and unjust, is to be obeyed, we 
are slaves as much as the inhabitants of Turkey. If the presi- 
dential edicts are to be the supreme law, and the officer» of the 
government have but to register them, as formerly in France^ 
(die country once so famed by these gentlemen for its progress 
and advancement towards liberty); and if we nmst submit ta 
diem, however unjust and unconstitutional, we are as subject to 
despotism, as the people of Turkey, the subjects of the former 
^ Grand Monarqnei^ in France, or those of the despot Bonaparte 
at tbb day. If this were true, where would be our boasted free- 
dom? where, the superior advantages of our government, or the 
beneficial effects of our revolutionary struggles? I will take the li- 
ber^ of eiplaining how far resistance is justifiable* The president 
has certain known and well defined powers; so has a common ma- 
gistrate, and so has a constable. The president may exceed his 
legal authority, as well as a magistrate or a constable. If a magis- 
trate issue a warrant and direct it to a constable, resistance to 
it b at the peril of the person resisting. If the warrant be ille- 
gal, he is excused: but if it be legal, be is not. On the same 






168 

principle, resistance to the orders of the president is excusable, 
if they be unconstituuonal and illegal* Resistance to an act of 
oppression^ unauthorised by law, can never be criminal; and this 
is all we contend for. 

Mr. Hat stated that he was sony to interrupt the gentle- 
man ; but, from his argument it was evident, that the ground 
taken by himself, and the gentlemen associated with him in the 
prosecution was entirely misunderstood. He denied that he 
ever said that the president's orders are invariably to be ob» 
served. That such an assertion might justly be considered as 
incompatible with the principles of our government. Mr. Hay 
then explained what his argument had been; and what he meant 
to insist on as correct. That if information had been lodged 
with the president, that a dangerous conspiracy or insurrection 
against the government and laws, or an expedition against a 
nation in amity with this country, was secretly or openly form- 
ing, it was the duty of the president to issue orders to suppress 
the insurrection or prevent the expedition; and if he did issue 
such orders or precept, it would not be lawful in an individual 
to oppose them by force : that an act of opposition to his pre- 
cept so issued, if not treason, would be at least a high misde- 
meanor; that such a precept was very different from an order 
to kill or imprison without bail or mainprize, or to raze to the 
ground and destroy, as gentlemen had represented the orders 
in question. 

Mr. Martin appealed to the court and bystanders whether 
Mr. Hay's assertions or arguments had not been substantially 
as he had represented them, and then continued. The gentle- 
man expressed his surprise that such doctrines should come 
from me, who come from Maryland to instruct and enlighten 
the Virginia bar. I come not to instruct or enlighten. I come 
to unite my feeble efforts with those of other gentlemen in de- 
fence of my friend, whom I believe to be perfectly innocent of 
the heavy charges against him : but their conduct evinces, that 
if I were to attempt it, my instructions would be in vain. If, 
however, I did venture to advise him, it would be, not to ac- 
cuse us of evil intentions ; to mix a little of the milk of human 
nature with his disposition and arguments; to make his con- 
duct conformable to his professions, and not to be perpetually 
imputing guilt to us. But the gentleman needs no advice. 

I have said, that I believed the orders and letter to be ne- 
cessary. I will not examine now as to their legality; that will 
be discussed hereafter ; but it is evident that they are material to 
try whether they were legal or not ; and if they were resisted,, 
whether that resistance was legal or not? The president is the 
proper person to apply to, because all the officers of the govern- 



169 

xnents are under his control. But tviro objections have been made, 
which have not yet, within my recollection, been answered: 
Qne is in the form of a question, that if thts evidence came, 
what would be done with it ? The answer is obvious : that it 
must be retained by the court till it is wanted. The other ob- 
. jection is, that there is no particular day to which the subpoena 
is legally returnable: the cause is not set on the docket to be tri- 
ed on any particular day, and therefore, no particular day is nam- 
ed. But this will produce no inconvenience : in general, process 
is made returnable: on the first day of the term. There the wit- 
ness can attend as soon as it may be convenient; that is, as soon 
as possible after the subpoena shall have been served; and it is 
in the power of the court to make it returnable when they think 
proper. [Here Mr- Martin made a reference to the practice in 
Maryland, which was not distinctly understood.] I thank the 
court for their patience in hearing these few observations; whe- 
ther time has been gained or not, the result will show* 

Chief Justice. — The affidavit speaks of an answer to gene- 
ral Wilkinson's letter* 

Mr. Burr. — Though I am extremely well satisfied with the 
arguments of my counsel, as far as they have gone, yet I shall 
offer a few additional remarks. The counsel for the prosecu- 
tion are mistaken when they say, that it would be improper to 
address the subpoena to the president. The public papers are 
not kept in the department of state, but in the separate depart- 
ments according to their nature. There is no official commu- 
nication between general Wilkinson, as a general or commander 
in chief, and the president, though there may be as governor of 
Louisiana. The communications from him, as general, are to 
the department of war. The president's letter does not show 
where general Wilkinson's letter is deposited. If addressed 
to him, it continues in his possession. His communication to 
congress shows that he has it. The course in congress is to 
apply direcdy to the president for any papers or documents 
wanted, and not to the secretaries;.because they are all under 
his control and direction: he can order them to deliver any pa- 
per or document in their possession, and they must obey him. 
Mr. Burr then went more into detail, the substance of which 
was, that there was no evidence of the commission of treason ; 
that the president, in his communication to congress, and in 
his proclamation, grounded on general Wilkinson's letter to 
him of the 21st of October, insinuates nothing of a treasonable 
nature; that in these he states, that an attack on the Spanish 
colonies was supposed to be intended: but if thtre had been 
any just reason for believing that treason had been committed, 
the president would certainly have stated it ; thsit he had beea 
Vol. I. Y ^ 






170 

denounced by the highest authority in the country ; that this de« 
^unciation had created a general prejudice against him ; that 
the government ought to furnish all the means in its power to 
remove the unjust prejudices thus improperly excited against 
him ; that he asked no. privilege but what the laws conferred on 
every citizen. He demanded these papers^ not for the purposes 
of detraction, as had been unjustly asserted; but to discover 
facts tending to prove his own innocence. He denied, in strong 
terms, having advised or stimulated his counsel to abuse the 
administration: that, on the contrary, he had charged them to 
avoid all irritating reflections. He concluded, by expressing bis 
hopes, that the motion would be granted ; that if the court made 
the order, the papers would be obtained without delay : where- 
as a previous application for them without such order, if un- 
successful, would produce considerable delay, which he wished 
very much to avoid ; and that the approach of general Wilkinson 
required a prompt opinion of the court to prevent delay. 

Mr. Hay observed, that he was much struck with the bold- 
ness of some gendemen on a subject on which they were not 
correctly informed. He said, that no opportunity was lost to 
abuse the administration. He animadverted on the argument 
of Mr. Randolph the other day : That he had proclaimed loudly 
that some parts of the orders of the navy department had ex- 
cited in his mind the most uneasy sensations. He confidently 
stated, that these orders were most cruel and illegal ^that they 
were to kill and destroy colonel Burr, and bum his property 
wherever found. That tfie purpose of gentlemen was easily 
discerned ; that Mr. Martin, in his vehement manner, talk- 
ed about the hell-hounds and blood-hounds of persecution 
having been let loose by the president or his instrumentality, 
to hunt down and destroy colonel Burr. That he was sorry that 
gentlemen should ascribe such acts to the government as not 
only it had never done, but as it was incapable of doing. To 
silence their clamours and put an end to such declamation about 
cruelty and tyranny, he said, that he would produce a copy of 
the order from the secretary of the navy, to which all their 
complaints referred ; that he would read it, and it would appear 
to be legal and proper; and that notwithstanding all the invec-. 
lives against the administration on account of it, there was no 
just cause of complaint against it. 

The counsel of colonel Burr wished to inspect the paper 
before it was read. Mr. Hay offered to read it, but refused to 
let them examine it. They then objected to its being read, 
and insisted, that it was the undoubted right of counsel, itt every 
cause, to examine all documents intended as evidence before 
they could be read» 



171 

Mr. Hat then observed, that their objection to its being 
read showed clearly their object, and was a palpable contradic- 
tion to their statement; that they used it as a mere pretext. 
Believing it not to be in court, they loudly demanded it as a 
document essential to their client, and demonstrative of op* 
pression in the government; but the moment it is offered to be 
read, they object to it. 

Mr. Martin vindicated colonel Burr from the charge of 
having stimulated him to make any severe reflections: that 
colonel Burr had, in fact, endeavoured to restrain him; but 
that he was urged by his own feelings to express his senti- 
ments, contrary to the directionsof his client. 

Mr. BoTTs vindicated Mr. Randolph (who was absent) 
from the charge preferred against him by Mr. Hay. He did 
not believe that Mr. Hay had intentionally misrepresented any 
thing; but that he was incorrect in saying, that the counsel of 
colonel Burr had expressed complaints without cause, and 
exibited charges without any evidence. We are, said Mr. 
Botts, in a delicate situation : great prejudices have been ex- 
cited, and the popular voice is raised against us. But we hope 
that truth and justice will prevail. We do not' wish to accuse 
the executive unjusdy; innocence ought to be presumed until 
guilt appears. We have prima facie evidence of what we al-^ 
lege; but still we hope that the honour and character of the go- 
vernment will be found to be unsullied, and that all doubts re- 
specting its conduct will be cleared up. This can be most ef- 
fectually done by producing freely, without reserve or opposi- 
tion, all the testimony in its power, which we demand as ma- 
terisd to our defence. Colonel Burr wished us not to wander 
into charges against the administration, unless the proofs of its 
improper acts were indubitable, and they were clearly connected 
with this cause. 

The Chief Justice, after having expressed the regret of 
the court, at the length of time already consumed in the dis- 
cussion of this motion, proposed, that no more than the usual 
number of counsel should speak on incidental points. 1 hat the 
court was unwilling to check gentlemen in their arguments, 
but it was hoped, that hereafter they would endeavour to 
avoid repetitions, and the unnecessary waste of time. 

Mr. Hay again proposed to read the letter of the secretary 
of the navy. 

Chiet Justice. — The propriety of reading depends on its 
authentication. 

Mr. Hay. — I suppose that gentlemen wish to see it, though 
not legally authenticated. 



172 

Mr. Martin expressed a doubt whether this was the same 
order; he presumed that there were more orders. 

Mr. Randolph (who had returned into court) wished to 
see it, in order to ascertain whether it was the same which they 
had seen in the Natchez gazette. 

Mr. Hay declared his belief that it was the same, but as 
gentlemen did not wish to hear it, he put it up again. 

Mr. Burr addressed the court. He observed, that this w*8 
perhaps the most proper time for renewing the motion which 
he had made some time ago, about giving more specific in- 
structions to the grand jur}% on certain points of evidence. 
These points he had reduced to writing, in the form of abstract 
propositions, which he would take the liberty of reading to the 
court: the following is a list of those propositions, with the 
authorities cited to support them. 

First, That the grand jury cannot, consistently with their 
oath, find a bill, except on such testimony as would justify a 
petit jury to find the prisoner guilty. Foster, 232. sec. 8. 3 Insti- 
tute, 25. 2 Institute, 384. DaltDn,519. Judge Wilson's Works, 
vol. 2. p. 364. T. W. Williams' Justice, vol. 3. printed 1794. 

3 State Trials, 419,420. and Sir John Hawles' Observations, 

4 St. Tr. 133. 4 Black. 302 — 306. 2 Hale, chap. 8. p. 61., 
Wilson's edition with Wilson's note. 2 Hale, chap. 22. p. 157., 
with Wilson's note. Eunomos' Diet. 2d. sec. 39. p. 124, 5, 6. 

5 State Tr. p. 3. Foster, p. 232. sec. 8. 

Second, That no testimony or witness ought to go to the 
grand jur)', but what is legal and competent to support the 
charge about which the inquiry is made. Danby's case. Leech 
443. c. 187. Dodd's case, Leech, 59. c. 77. Commonwealth of 
Virginia v. Hopbam, Warles and Daws, before the general 
court at Williamsburg. 

Third, That the grand jury cannot return a bill for treason, 
for levying war against the United States, unless they have 
two witnesses who swear to the overt act of the treason laid 
in the indictment; both which witnesses are believed by them. 
East's Crown Law, chap. 2. sec. 64. 

That both must be believed, 3 State Trials, p. 56. 

Fourth, That there must be two witnesses to the grand jury 
of each overt act, follows also as a consequence from the former 
position, that they must have such testimony as would be re- 
quisite for the petit jury. 

Fifth, That the grand jury cannot find a bill for treason in 

consequence of any confessions made, though proved by two 

•witnesses. Foster, 241, — 3. 4 Black. Constitution of the 

United States, article 3. sec. 3. Graydon's Digest, 11. Judge 



173 

Iredell's charge, Fries's Trial, 171, 1/2^ East's Crown Law, 
96,97. 

Sixth, That as the grand jury only hear evidence on the 
part of the state, if upon that evidence they entertain a doubt 
of the truth of the charge, they ought not to find the bill ; as the 
presumption is ever in, favour of innocence. 1 Mac Nally, 
2 to 6. 

Seventh, No act of a third person can be given in evidence 
against the accused to prove him guilty of treason, or of a mis- 
demeanor under the law of the 5th June 1794, unless that act 
is proved to have been committed by the advice, command^ 
direction or instigation of the accused, if done in his absence, 
or if done in his presence, unless it be proved that the accused 
was aiding or assisting. 

An act shall bind a person connected with the act, but the 
declaration shall not bind him, because no part of the act. 
Mac Nally, 615, 616. 

Eighth, The declarations of others cannot be g^ven in evi- 
dence on the present inquiry to support the charge of treason, 
or of a misdemeanor under the act of congress 15th June, 
1794, unless it be proven that the accused was present and as- 
sented thereto. 

East, 96. In case of conspiracy, confessions good against 
him who makes them, but not against others, Peake, chap. 
1. Admiss. Hearsay — Kelyng, 18. Mac Nally, 40, 41. Con- 
fessions of one cannot be read against others. 3 State Tri- 
als, 57 • 

A relation of what had been done, no evidence. Mac Nally, 
616. 

Declarations of others are not evidence. 4 State Trials, 
192—196. 

6 State Trials, 218. In the presence of others, they acqui- 
escing. Mac Nally, 621. 

Mr. Hay opposed this proceeding. He contended, that the 
court had no right to give specific instructions to the grand 
jury, after they had been once generally charged by the courf ; 
that such a course was contrary to all law and all precedent; 
that not a single instance could be quoted to support it; and 
that there were cogent, and in this instance, particular reasons 
why criminal prosecutions should be suffered to progress with- 
out these interruptions. He further contended, that the chief 
justice had anticipated such a situation ; and that t^e language 
in his charge clearly indicated his expectation, that bills would 
be laid before the grand jury on the ground of treason; and 
that under this expectation, the chief justice had dilated on the 
nature of treason, and given all the information which he thought 
material; that there was no reason at all, why Aaron Burr 



176 

At present, but should reserve it until Monday. In the meatt 
time colonel Burr's counsel have an opportunity of inspecting it; 
and an argument might be held oh the points which had pro^ 
duced an objection from the attorney for the United States. 

Mr. E. Randolph. — Is it the wish of the court that the ar- 
gument should be carried on orally or in writing? ' 

Chief Justice*-— I am willing to see the remarks on both 
sides, in writing. 

Mr. Hat objected to this method from the excessive labour 
which it would impose u|>on them either way. 

The Chief Justice declared that it was perfectly indiflFerent 
to him. 

Mr. Martin assured the court that it was perfectly convenient 
to him to argue the point either orally or in writing. 

Mr. WiCKHAM stated, that the attorney for the United States 
wished to object to certain propositions which colonel Burr had 
submitted to the court; that he was ready to go into the discus- 
sion immediately; that the attorney for the United States pre- 
ferred an argument before the court to one in writing; and that 
this was in fact, the very course which colonel Burr's counsel 
had first recommended. Mr. Wickham hoped that this supple- 
mental charge would be given to the jury, before the witnesses 
were sent up; that the counsel for the prosecution preferred the 
contrary, but which was, in fact, the most improper course. 

The Chief Justice observed, that the court would also have 

wished that the charge should have been delivered, before the 

witnesses were sent up: but that it was almost indifferent to him, 

whether the testimony was submitted to the grand jury before or 

after the delivery of the charge ; that it was often the custom for the 

petit jury itself to hear the testimony before the law was expounded, 

and the same practice might extend to the grand jury; for it was 

extremely easy for them, after they had heard the testimony, to 

apply the instructions of the court, and distinguish those parts 

which were admissible from those that were not so. It was not^ 

for instance, absolutely necessary for them to know, previous to 

the delivery of the charge, that two witnesses were necessary to 

prove the overt act. When the charge had been delivered, that 

principle would apply to the testimony which they had actually 

heard; and that it was desirable that though the charge should 

precede the testimony, yet it was not so essential as to interrupt 

the proceedings. 

Mr. Randolph conceived it far more important to give the 
supplemental charge before than after the exhibition of the tes- 



177 

timony : that with one set of principles on their mind, the grand 
jury would frequendy ask questions in one point of view, which 
they would net under other impressions; and that the supple* 
mental, lilre the original, charge ought to precede the evidence. 

Mr. Martin observed, that there was this considerable dif- 
ference between a grand and a petit jury, that when any doubt 
arose about the propriety of testimony before die petit jury, the 
court would be present and ready to decide; but the grand jury 
has not the same aid of the judgment of the court in selecting 
the testimony. 

The Chief Justice said, that the necessity of giving a sup- 
plemental charge, at this time, was not so manifest; as, in his ori- 
ginal charge, he had expressed his ideas on the nature of treason. 
That he stated this crime to consist in an actual *' levying of 
war,'' and that of course, the grand jury would have to inquire 
into the existence of overt acts : that, from this statement, it 
would readily occur to the jury, that no matter what suspicions 
were entertained, what plans had been formed, what enterprizes 
had been projected, there could be no treason without an overt 
act; and without some overt act, no crime of treason had been 
committed. 

The discussion of this question was at length waived, when the 
Chief Justice delivered the following opinion on the motion to 
issue a subpcsna duces tecum directed to the president of the 
United States : 

The object of the motion, now to be decided, is to obtain copies 
of certain orders, understood to have been issued to the land and 
naval officers of the United States for the apprehension of the ac- 
cused, and an original letter from general Wilkinson to the pre- 
wdent in relation to the accused, with the answer of the president 
to that letter, which papers are supposed to be material to the 
defence. As the legal mode of effecting this object, a motion is 
made for a subpoena duces tecumy to be directed to the president 
of the United States. 

In opposidon to this motion, a preUminary point has been 
made by the counsel for the prosecution. It has been insisted by 
them, that, until the grand jury shall have found a true bill, the 
party accused is not entided to subpoenas nor to the aid of the 
court to obtain his testimony. 

It will not be said, that this opinion is now, for the first time, 
advanced in the United States; but certainly, it is now, for the 
first time, advanced in Virginia. So far back as any knowledge 
of our jurisprudence is possessed, the uniform practice of this 
country has been, to permit any individual, who was charged 
with any crime, to prepare for his defence, and to obtain the 

Vol. I. Z 



174 

should enjoy greater privileges than any other man, or why he 
should rake up all the old, musty and absurd doctrines of an* 
tiquity, and have them enlisted in his service; and that he 
stood on the very same ground as any other man. That perhaps 
alt the propositions on Mr* Burr's list would not be wanting 
at all ; or if there should be any necessity for them, that these 
^ questions might be discussed as they successively arose ; that 

i tltese discussions would necessarily consume much of his own 

time, as well as the time of the court, which might probably be 
devoted to more useful purposes; and after all, the grand jury 
might refuse any instructions, and in that case, how could they 
be controlled by the court? If the grand jury determined to 
pfty no regard to it, of what avail would be the recommendation 
of the court i (for it was in fact no more). And if they were to 
_i find according to their own opinions, and in the old way, how 

could the court Icnow of this variation, and how could they 
rectify it? 

Mr. BoTTs replied. He stated that the gentleman had de- 
manded precedents ; and yet it was but the other day when 
that very gentleman had .inquired, why we so- constantly re- 
sorted to precedents, and why we did not sometimes consult 

. the principles of common sense : that the grand jury were not 

that lawless mob, which the gentleman had seemed to repre- 
sent them ; and that they would not certainly act against the 
law, when it was properly expounded to them by the court; 
that although the chief justice's charge was extremely able, yet 

' it was impossible that it could be so comprehensive as it might 

now be made, from the information which has since occurred; 
and that the very necessity o£ giving any charge at all, showed 
the propriety of perfecting it; that it was not colonel Burr's 
desire to consume much time, as it was his most earnest wish 
to end at once the bonds of recognisance and the public pre- 
judice which Surrounded him ; and that they were even wil- 
ling to limit their share of the discussion to a particular time. 

The Chief Justice said, that it was usual and the best 
course for the court to charge the jury generally, at the com- 
mencement of the term, and to give their opinion on incidental 
points as they arose, when the grand jury themselves should 
apply to them for information ; that it was manifestly improper 
to commit the opinion of the court on points which might 
come before them, to be decided on the trial in chief; that he 
had generally confined his charges to a few general points, 
without launching into many details ; one reason was, that some 
of the detailed points might never arise during the session of 
the grand jury, and any instruction on them, would of course, 
t^ unnecesisary; another was, that some of these points might 



175 

te extremely difficult to be decided, and would require an argu<^ 
ment of counsel ; because there was no judge or man, who would 
Bot often find the sofitary meditations of his closet very mudi as* 
sisted by the discussions of others : that he would have had no 
difficulty, however, in expanding his charge, if he had been par- 
ticularly requested to do it, or if he could have anticipated any 
necessity for it, and that he would have no difficulty in giving his 
opinions at this time on certain points, on which he could obtain 
a discussion by the counsel, provided he did not thereby commit 
his opinion on the trial in chief. 

Mr. Burr then requested him to inspect the list of proposi* 
tions, and the authorities referred to in support of them, which 
he had prepared; he might then determine which of those points 
would admit of the delivery of his opinion, and which would not* 

The court then adjourned till to-morrow. 

Saturday, June 13th, 1807". 

The court met according to adjournment. 

Mr. Burr thought proper to mention that his counsel hatl 
understood, that a supplemental charge had been written by the 
court, and put into the hands of the attorney of the United 
States, and that it was to be shown to his counsel before it was 
delivered. That for want of time, or some other cause, it had not 
yet been submitted to them. The court had yesterday requested 
and obtained a copy of his propositions, that they might judge 
of their application, and if satisfied on that point, that they might 
give additional instructions to the grand jury. Though the court 
might not at first have perceived the necessity of a supplemental 
charge, yet it must now appear, that each of his propositions 
must come before the grand jury. If the court were satisfied 
that they ought, they would have such additional instructions as 
were necessary; and if they had. doubts, they would require an 
argument. He was ready to demonstrate the truth of every one 
of them. That he was ready to argue three weeks ago, and w^ 
desirous to save time, and would support them by written or oral 
arguments, as the court might think proper. 

The Chief Justice stated that he had drawn up a supplement 
Sal charge, which he had submitted to the attorney for the Uni- 
ted States ; with a request that it should also be put into the 
hands of colonel Burr's counsel ; that Mr. Hay had however in- 
formed him, in the conversation which he had just had with him, 
that he had been too much occupied himself, to inspect the charge 
with attention, and deliver it to the opposite counsel ; but another 
reason was, that there was one point in the charge which he did 
■ot fully approve. He should not, therefore, deliver his charge 



176 

at present, but should reserve it until Monday* In the ineaH 
time colonel Burr's counsel have an opportunity of inspecting it; 
and an argument might be held oh the points which had pro*' 
duced an objection from the attorney for the United States. 

Mr. E. Randolph. — Is it the wish of the court that the ar- 
gument should be carried on orally or in writing ? ' 

Chief Justice***! am willing to see the remarks on both 
sides, in writing. 

Mr. Hay objected to this method from the excessive labour 
which it would impose upon them either way. 

The Chief Justice declared that it was perfectly indifferent 
to him. 

Mr. Martin assured the court that it was perfecdy convenient 
to him to argue the point either orally or in writing. 

Mr. WiCKHAM stated, that the attorney for the United States 
wished to object to certain propositions which colonel Burr had 
submitted to the court; that he was ready to go into the discus- 
sion immediately; that the attorney for the United States pre- 
ferred an argument before the court to one in writing; and that 
this was in fact, the very course which colonel Burr's counsel 
had first recommended. Mr. Wickham hoped that this supple- 
mental charge would be given to the jury, before the witnesses 
were sent up; that the counsel for the prosecution preferred the 
contrary, but which was, in fact, the most improper course. 

The Chief Justice observed, that the court would also have 
wished that the charge should have been delivered, before the 
witnesses were sent up: but that it was almost indifferent to him, 
whether the testimony was submitted to the grand jury before or 
after the delivery of the charge ; that it was often the custom for the 
petit jury itself to hear the testimony before the law was expounded, 
and the same practice might extend to the grand jury; for it was 
extremely easy for them, after they had heard the testimony, to 
apply the instructions of the court, and distinguish those parts 
which were admissible from those that were not so. It was not, 
for instance, absolutely necessary for them to know, previous to 
the delivery of the charge, that two witnesses were necessary to 
prove the overt act. When the charge had been delivered, that 
principle would apply to the testimony which they had actually 
heard; and that it was desirable that though the charge should 
precede the testimony, yet it was not so essential as to interrupt 
the proceedings. 

Mr. Kandolph conceived it far more important to give the 
supplemental charge before than after the exhibition of the tes* 



177 

timony : that with one set of principles on their mind, the grand 
jury would frequently ask questions in one point of view, which 
they would not under other impressions; and that the supple* 
mental, like the original, charge ought to precede the evidence. 

Mr. Martin observed, that there was this considerable dif- 
ference between a grand and a petit jury, that when any doubt 
arose about the propriety of testimony before the petit jury, the 
court would be present and ready to decide; but the grand jury 
has not the same aid of the judgment of the court in selecting 
the testimony. 

The Chief Justice said, that the necessity of giving a sup- 
plemental charge, at this time, was not so manifest; as, in his ori- 
ginal eharge, he had expressed his ideas on the nature of treason. 
That he stated this crime to consist in an actual ^* levying of 
war," and that of course, the grand jury would have to inquire 
into the existence of overt acts : that, from this statement, it 
would readily occur to the jury, that no matter what suspicions 
were entertained, what plans had been formed, what enterprizes 
had been projected, there could be no treason without an overt 
act; and without some overt act, no crime of treason had been 
committed. 

The discussion of this question was at length waived, when the 
Chief Justice delivered the following opinion on the motion to 
issue a subpoena duces tecum directed to the president of the 
United States : 

The object of the motion, now to be decided, is to obtain copies 
of certain orders, understood to have been issued to the land and 
naval officers of the United States for the apprehension of the ac- 
cused, and an original letter from general Wilkinson to the pre- 
sident in relation to the accused, with the answer of the president 
to that letter, which papers are supposed to be material to tho 
defence. As the legal mode of effecting this object, a motion is 
made for a subpoena duces tecum^ to be directed to the president 
of the United States. 

In opposition to this motion, a preliminary point has been 
made by the counsel for the prosecution. It has been insisted by 
them, that, until the grand jury shall have found a true bill, the 
party accused is not entided to subpoenas nor to the aid of the 
court to obtain his testimony. 

It will not be said, that this opiuion is now, for the first time, 
advanced in the United States; but certainly, it is now, for the 
first time, advanced in Virginia. So far back as any knowledge 
of our jurisprudence is possessed, the uniform practice of this 
country has been, to permit any individual, who was charged 
with any crime, to prepare for his defence, and to obtain the 

Vol. I. Z 



178 

process of the court, for the purpose of enabUng htiii so to dO* 
This practice is as convenient, and as consonant to justice, 
as it is to humanity. It prevents, in a great nieasUrev those 
delays which are never desirable, which frequendy occasion the 
loss of testimony, and which are often oppressive. That would 
be the inevttable consequence of withholding from a prisoner the 
process of the court, until the indictment against him was found 
by the grand jury. The right of an accused person to the pro* 
cess of the court, to compel the attendance of witnesses, seems to 
follow, necessarily, from the right to examine those witnesses; and, 
wherever the right exists, it would be reasonable that it should 
be accompanied with the means of rendering it effectual. It is 
not doubted, that a person, who appears before a court under a 
recognisance, must expect that a bill will be preferred against 
him, or that a question, concerning the continuance of the recog- 
nisance, will be brought before the court. In the first .event, he 
has the right, and it is perhaps his duty, to prepare for his de« 
fence at the trial. In the second event, it wiU not be denied, that 
he possesses the right to examine witnesses on the question of 
continuing his recognisance. In either case, it would seem rea* 
sonable, that he should be entitled to the process of the court, to 
procure the attendance of his witnesses. The genius and charac- 
ter of our laws and usages are friendly, not to condemnation at 
all events, but to a fair and impartial trial; and they conse- 
quently allow to the accused the right of preparing the means to 
secure such a trial. The objection, that the attorney may refuse to 
proceed at this time, and that no day is fixed for the trial, if he 
should proceed, presents no real difficulty. It would be a very 
insufficient excuse to a prisoner, who had failed to prepare fop his 
trial, to say, that he was not certain the attorney would proceed 
against him. Had the indictment been found at the first term, it 
would have been in some measure uncertain, whether there would 
have been a trial at this, and still more uncertain on what day 
that trial would take place ; yet, subpoenas would have issued re« 
tumableto the first day of the term; and if, after its commence- 
ment, other subpoenas had been required, they would have issued 
returnable as the court might direct. In fact, all process, to which 
^the law has affixed no certain return day, is made returnable at 
the discretion of the court. 

General principles, then, and general practice are in favour of 
the right of every accused person, so soon as his case is in court, 
to prepare for his defence, and to receive the aid of the process 
of the court to compel the attendance of his witnesses. 

The constitution and laws of the United States will now be 
considered, for the purpose of ascertaining how they bear upon 
the question. The eighth amendment to the constitution gives to 
the accused, ^^ m all criminal prosecutions, a right to a speedy 



179 

and public trial, and to compulsory process for obtaining wit- 
nesses in his favour." The right, given by tlus article, must be 
deemed sacred by the courts, and the article should be so con* 
strued as to be something more than a dead letter. What can 
more effectually elude the rightto a speedy trial than the declarar 
ticm, that the accused shall be dbaUed from preparing for it, un- 
til an indictment shall be found against him? It is certainly much 
more in the true spirit of the provision, which secures to the ac* 
cused a speedy trial, that he should have the benefit of the 

Erovision, which entitles him to compulsory process, as soon as 
e is brought into court. 
This observation derives additional force from a consideration 
of the manner in which this subject has been contemplated by con- 
gress. It is obviously the intenuon of the national legislature, that, 
in all capital cases, the accused lAiall be entitled to process btfore 
indictment found. The words of the law are, ^^ and ever>' such 
person or persons accused or indicted of the crimes afortsaid, 
{that is of treason or any other capital offence) shall be allowed 
and admitted in his said defence, to make any proof that he or 
they can produce, by lawful witness or witnesses, and shall have 
the like process of the court where he or. they shall be tried, to 
compel his or their witnesses to appear at his or their trial, as is 
usually granted to compel witnesses to appear on the prosecution 
against them." 

This provision is made for persons accused or indicted. From 
the imperfection of human language, it frequently happens, that 
sentences, which ought to be the most explicit,are of doubtful con- 
struction; and in this case the words, *^ accused or indicted," may 
be construed to be synonymous, to describe a person in the same 
situation, or to apply to different stages of the prosecution. The 
word or may be taken in a conjunctive (M? a disjunctive sense. A 
reason for understanding them in the latter sense is furnished 
by the section itself. It commences with declaring, that any person, 
who shall be accused and indicted of treason, shall have a copy 
of the indictment, and at least thi^e days before his trial. This 
right is obviously to be enjoyed after an indictment, and there- 
fore the wonls are ^^ accused and indicted." So, with respect to 
the subsequent dause, which authorises a party to make his de- 
fence, and directs the court, on his application, to assign him coun- 
seL The words relate to any person accused and indicted. But, 
when the section proceeds to authorise the compulsory process for 
witnesses, the phraseology is changed. Th^ words are, " and every 
such person or persons accused or indicted," &g. thereby adapting 
die expression to the situation of an accused person both before 
and after hidictroent. It is to be remarked, too, that the person, so 
^Mxuaed or indicted, is to have *^ the likt» process tt> compel his 
or thehr witnesses to appear at his or their trial, as is usually 



180 

granted to compel witnesses to appear on the prosecution against 
him." The fair construction of this clause would seem to be, 
that, with respect to the means of compelling the attendance d[ 
witnesses to be furnished by the court, the prosecution and de* 
fence are placed by the law on equal ground. The right of the 
prosecutor to take out subpcenas, or to avail himself of the aid of 
the courts in any stage of the proceedings previous to the indict- 
ment, is not controverted. This act of congress, it is true, ap[^ie8 
only to capital cases; but persons, charged with offences not ca- 
pital, have a constitutional and a legal right to examine their testi- 
mony and this act ought to be considered as declaratory of the 
common law in cases where this constitutional right exists. 

Upon immemorial usage, then, and upon what is deemed a 
sound construction of the constitution and law of the land, the 
court is of opinion, that any person, charged with a crime in the 
courts of the United States, has a right, before, as well as after 
indictment, to the process of the court to compel the attendance 
of his wimesses. Much delay and much inconvenience may be 
avoided by this construction; no mischief, which is perceived, 
can be produced by it. The process would only issue when, 
according to the ordinary course of proceeding, the indictment 
would be tried at the term to which the subpcena is made return- 
able; so that it becomes incumbent on the accused to be ready 
for his trial at that term. 

This point being disposed cf, it remains to inquire, whether a 
subpoena duces tecum can be directed to the president of the 
United States, and whether it ought to be directed in this case i 
* This question, originally, consisted of two parts. It was at first 
doubted, whether a subpcena could issue, in any case, to the 
chief magistrate of the nation ; and if it could, whether that 
subpoena could do more than direct his personal attendance: 
whether it could direct him to bring with him a paper which 
was to constitute the gist of his testimony. Whik the argu- 
ment was opening, the attorney for the United States avowed 
his ppinion, that a general subpoena might issue to the president; 
but not a subpoena duces tecum. This terminated the argument on 
that part of tne question. The court, however, has thought it ne- 
cessary to state briefly the foundation of its opinioh, that such a 
subpoena may issue. 

In the provisions of the constitution, and of the statute, which 
give to the accused a right to the compulsory process of the 
court, there is no exception whatever. The obligation, therefore, 
of those provisicHis is general; and it would seem, that no per- 
son could claim an exemption iirom them, but one who would 
not be a witness. At any rate, if an exception to the general 
principle exist, it must be looked for in the law of evidence. 
The exceptions furnished by tjfie law of evidence, (with one 
only reservation) so far as they are personal, are of those 



181 

only whose testimony could not be received. The single re« 
servation, alluded to, is the case of the king. Although he may, 
perhaps, give testimony, it is said to be incompatible with lus 
dieni^ to appear under the process of the court. Of the many 
pomts of difference which exist between the first magistrate in 
England and the first magistrate of the United States, in respect 
to ^e personal dignity conferred on them, by the constitutions of 
their respective naticms, the court will only select and mention 
two. It is a principle of the English constitution, that the king 
can do no wrong, that no blame can be imputed to him, that he 
cannot be named in debate. 

By the constitution of the United States, the president, as well 
as every other officer of the government, may be impeached, 
and may be removed from office on high crimes and misde* 
meanors. 

By the constitution of Great Britain, the crown is hereditary, 
and the monarch can never be a subject. 

By that of the United States, the president is elected from 
the mass of the people, and, on the expiration of the time for 
which he is elected, returns to the mass of the people again. 

How essentially this difference of circumstances must vary the 
policy of the laws of the two countries, in reference to the per-' 
sonal dignity of the executive chief, will be perceived by every 
person. In this respect, the first magistrate of the Union may 
more properly be likened to the first magistrate of a state; at 
any rate, under the former confederation ; and it is not known 
ever to have been doubted, but that the chief magistrate of a state 
might be served with a subpoena ad testificandum. 

If, in any court of the United States, it has ever been decided, 
that a subpoena cannot issue to the president, that decision is un« 
known to this court. 

If, upon any principle, the president could be construed to 
stand exempt from the general provisions of the constitution, it 
would be, because his duties, as chief magistrate, demand his 
whole time for national objects. But it is apparent, that this de* 
mand is not unremitting; and, if it should exist at the time when 
his attendance on a court is required, it would be sworn on the 
return of the subpoena, and would rather constitute a reason for 
not obeying the process of the court, than a reason aeainst its 
being issued. In point of fact it cannot be doubted, that me people 
of England have the same interest in the service of the execu* 
tive government, that is, of the cabinet counsel, that the Ameri* 
can people have in the service of the executive of the United 
States, and that their duties are as arduous and as unremitting. 
Yet it has never been alleged, that a subpoena might not be di- 
rected to them. It cannot be denied, that, to issue a subpoena to a 
person, filling the exalted station of the chief magistrate, is a du^ 
which would be dispensed with much more cheerfully than it 



182 

would be performed; but, if it be a duty, the court can have no 
choice in the case* 

If, then, as is admitted by the counsel for the .United States, a 
subpcena may issue to the president, the accused is entitled to it 
of course; and, whatever difference may exist with respect to the 
power to compel the same obedience to the process, as if it had 
been directed to a private citia^en, there exists no difienrnce widi 
respect to the right to obtain it. The guard, furnished to this 
high officer, to protect him from being harassed by vexatious 
and unnecessary subpanas, is to be looked for in the conduct of 
a court after those subpoenas have issued ; not in any circum« 
stance which is to precede their being issued. If, in being sum* 
moned to give his personsd attendance to testify, the law does 
not discriminate between the president and a private citizen, 
what foundation is there for the opinion, that this difierence is 
created by the circumstance, that his testimony depends on a 
paper in his possession, not on facts which have come to his 
knowledge otherwise than by writing? The court can perceive 
no foundation for such an opinion* The propriety of introducing 
any paper into a case, as testimony, must depend on the character 
of the paper, not on the character of the person who holds it. A 
subpoena €tuce8 tecum^ then, may issue to any person to whom an 
ordinary subpoena may issue, directing him to bring any paper 
of which the party praying it has a right to avail himself as tes- 
timony; if, indeed, that be the necessary process for obtaining xbit 
view of such paper. 

When this subject was suddenly introduced, the court felt 
some doubt concerning the propriety of directing a subpoena to the 
chief magistrate, and some doubt, also, concerning the propriety 
of directing any paper in his possession, not public in its natuire, 
to be exhibited in court. The impression, that the questions 
which might arise, iu consequence of such process, were more pro- 
per for discussion on the return of die process than on its issuing, 
was then strong on the mindof the judges; but, the circumspec* 
tion with which. they would take any step, which would, in any 
manner, relate to that high personage, prevented their yielding 
readily to those impressions, and induced the request, that those 
points, if not admitted, might be argued. The result of that 
argument is a confirmation of the impression originally enter- 
tained. The court can perceive no legal objection to issuing a 
subpoena duces tecum to any person whatever, provided, the case 
be such as to justify the process* 

This is said to be a motion to the discretion of the court. 
This is true. But a motion to it^ discretion is a motion, not to 
its inclinationy but to its ju£^ment; and its judgment is to be 
guided by sound legal principles. A subpcena duces tecum varies 
from an ordinary subpoena only in this; that a witness is sum- 



1 



183 

inooed for the purpose of bringing with him a paper in bis cus* 
tody* In some of our sister states, whose system of j urtsprudence 
is erected on the same foundation with our own, this process, we 
leam, issues of course. In this state it issues, not absolutely of 
course, but with leave of the court* No case, however, exists, 
as is believed, in which die motion has been founded on an afii* 
davit, in which it has been denied, or in which it has been op- 
posed* It has been truly observed, that the opposite party can, 
regularly, take no more interest in the awarding a subpoena duccM 
tecum than in the awarding an ordinary subpoena* In either 
case, he may object to any delay, the grant of which, may be 
implied in granting the subpoena; but he can no more object, 
regularly, to the legal means of obtaining testimony, which exists 
in the mind, than in the papers of the person who may be sum* 
moned* If no inconvenience can be sustained, by the opposite 
party, he can only oppose the motion in the character of an ami* 
cus curis; to prevent the court from making an improper order, 
or from burthening some officer, by compelling an unnecessary 
attendance. This court would certainly be very unwilling to say, 
that, upon fair construction, the constitutional and legal right to 
obtain its process, to compel the attendance of witnesses, does 
not extend to their bringing with them such papers sts may be 
material in the defence* The literal distinction, which exists be- 
tween the cases, is too much attenuated to be countenanced in 
the tribunals of a just and humane nation* If, then, the subpoena 
be issued, without inquiry into the manner of its application, it 
would seem to trench on the privileges which the constitution 
extends to the accused; it would seem to reduce his means of 
defence within narrower limits than is designed by the funda- 
mental law of our country, if an overstrained rigour should be 
used with respect to his right to apply for papers deemed by 
himself to be material* In the one case, the accuflfed is made 
the absolute judge of the testimony to be summoned; if, in the 
other, he is not a judge, absolutely, for himself, his judgment 
oi^t to be controlled only so far as it is apparent that he means 
to exercise his privileges, not really in his own defence, but for 
purposes which the court ought to discountenance* The coiut 
would not lend its aid to motions obviously designed to manifest 
disrespect to the government; but the court has no rig^t to refuse 
its aid to motions for papers to which the accused may be en- 
tided, and which may be material in his defence* 

These observations are made to show the nature of the dis- 
cretion which may be exercised* If it be apparent, that the papers 
are irreladve to the case; or that, for state res&ons, they cannot be 
introduced into the defence, the subpoena duces tecum would be 
useless* But, if this be not iqpparent ; if they may be important in 
the defence; if they may be safely read at the trial ; would it not 



184 

be a blot in the page, which records the judicial proceedings of 
this country, if, in a case of such serious import as this, the ac- 
cused should be denied the use of them? 

The counsel for the United States take a very different view 
of the subject; and insist, that a motion for process to obtain tes^ 
timony should be supported by the same full and explicit proof 
of the nature and application of that testimony, which would be 
required on a motion, which would delay public justice; which 
would arrest the ordinary course of proceeding; or would, in any 
other manner affect the rights of the opposite party. In favour 
of this position has been urged the opinion of one, whose loss, 
as a friend, and as a judge, I sincerely deplore; whose worth I 
feel, and whose authority I shall at all times greatly respect. If 
his opinion were really opposed to mine, I should certainly re- 
vise, deliberately revise, the judgment I had formed: but I 
perceive no such opposition. 

In the trials of Smith and Ogden, the court, in which judge 
Patterson presided, required a special affidavit in support of a 
motion, made by the counsel for the accused, for a continuance 
and for an attachment against witnesses who had been subpoenaed 
and had failed to attend. 

Had this requisition of a special affidavit been made as well 
a foundation for an attachment as for a. continuance, the cases 
would not have been parallel; because, the attachment was con« 
sidered by the counsel. for the prosecution merely as a mean of 
punishing the contempt, and a court might certainly require 
stronger testimony to induce them to punish a contempt, than 
would be required to lend its aid to a party in order to procure 
evidence in a cause. But the proof furnished by the case is most 
conckisive, that the special statements of the affidavit were re- 
quired solely on account of the continuance. 

Although the counsel for the United States considered the mo- 
tion, for an attachment, merely as a mode of punishing for con« 
tempt, the counsel for Smith and Ogden considered it as com* 
pubory process to bring in a witness, and moved a continuance 
until they could have the benefit of this process. The continu- 
ance was to arrest the ordinary course of justice; and, therefore, 
the court required a special affidavit, showing the materiality of 
the testimony before this continuance could be granted. Prima 
facie evidence could not apply to the case; and there was an 
additional reason for a special affidavit. The object of this spe- 
cial statement was expressly said to be for a continuance. Golden 
proceeded: ^ The present application is to put off the cause on 
account of the absence of witnesses, whose testimony the defen- 
dant alleges is material for his defence, and who have disobeyed 
the ordinary process of the court. In compliance widi the inti- 
mation from the bench, yesterday, the defendant has disclosed. 



185 

by the affidavit which I have just read, the points to which 4|p 
expects the witnesses who have been summoned will testify. 

**' If the court cannot, or will not, issue compulsory process, to 
bring in the witnesses who are the dbjects of ttus application, tliea 
the cause will not be postponed* 

*^ Or, if it appear to the court, that the matter disclosed by the 
affidavit might not be given in evidence, if the witnesses were now 
here, then we cannot expect that our motion will be successful. 
For it would be absurd to suppose, that the court will postpone 
the trial on account of the absence of wimesses whom they can- 
not compel to appear, and of whose voluntary attendance there 
is too much reason to despair; or, on accoimt of the absence of 
witnesses who, if they were before the court, could not be heard 
on the trial." (See page 12 of the Trials of Smith and Ogden.) 

This argument states, unequivocally, the purpose for which a 
special affidavit was required. 

The counsel for the United States considered the subject in the 
same light. After exhibiting an affidavit for the purpose of show- 
ing, that the witnesses could not probably possess any material in* 
formation, Mr. Standford said, ^ It was decided by the court yes- 
terday, that it was incumbent on the defendant, in order to en- 
tide himself to a postponement of the trial, on account of the 
absence of these witnesses, to show in what respect they are ma- 
terial for his defence. It was the opinion of the court, that the 
general affidavit, in common form, would not be snffident for this 
purpose; but, that the particular facts, expected from the wit- 
nesses, must be disclosed, in order that the court might, upon 
those (SLCXA, judge of the propriety of granting the postponement'' 
(p. 27.) 

The court frequendy treated the subject so as to show the opi- 
nion, that the special affidavit was reqtiired only on account of the 
continuance ; but, what is conclusive on this point is, that after de- 
ciding the testimony of the wimesses to be such as could hot be 
offered to the jury, judge Patterson was of opinion, that a rule^ 
to show cause why an attachment should not issue, <ougbt to be 
granted. He could not have required the materiali^ of the wit- 
ness to be shown on a motion, the success of which did not, ia 
his opinion, in any degree depend on that materialitv ; and which 
he granted after deciding the testimony to -be sucn as the jiuy 
ought not to hear. It is, then, most apparait, that the opini<Mi of 
judge Patterson has been misunderstood, and that no mference 
can possibly be drawn fipm it, opposed to the principle which 
has been laid down by the court. That prmciple will therefort 
be applied to the present motion. 

The first paper required is the letter of general Wilkinson^ 
which was referred to in the message of the president to con- 
gress. The application of that letter to the case is shown, bjr 

Vol. I. 2 A 



186 

m 

t 

thb terms in which the communication was made. It is a statie- 
ment of the conduct of the accused, made by the person who is 
declared to be the essential witness against him. I'he order for 
producing this letter is opposed, 

First, Because it is not material to the defence. It is a principle, 
universally acknowledged, that a party has a right to oppose to 
the testimony of any witness against him, the declarations which 
that witness has made, at other times, on the same subject. If he 
possesses this right, he must bring forward proof of those decla- 
rations. This proof must be obtained before he knows, positively, 
what the witness will say ; for, if he waits until the witness has 
been heard at the trial, it is too late to meet him with his former 
declarations. Those former declarations, therefore, constitute a 
mass of testimony, which a party has a right to obtain by way of 
precaution, and the positive necessity of which can only be de- 
cided at the trial. 

It is with some surprise an argument was heard from the bar, 
insinuating, that the award of a subpoena, on this ground, gave 
the countenance of the court to suspicions aflFecting the veracity 
of a witness, who is to appear on the part of the United States. 
This observation could not have been considered. In contests of 
this description, the court takes no part; the court has no right 
to take a part. Every person may give in evidence, testimony 
such as is stated in this case. What would be the feelings 
of the prosecutor, if, in this case, the accused should pro- 
duce a witness completely exculpating himself, and the attorney 
for the United States should be arrested in his attempt to prove 
what the same witness had said upon a former occasion, by a de- 
claration from the bench, that such an attempt could not be per- 
mitted, because it would imply a suspicion in the court, that the 
witness had not spoken the truth? Respecting so unjustifiable an 
interposition but one opinion would be formed 

The second objection is, that the letter contains matter which 
ought not to be disclosed. 

That there may h€ matter, the production of which the court 
would not require, is certain ; but that, in a capital case, the accu- 
sed ought, in some form, to have the benefit of it, if it were re- 
ally essential to his defence, is a position which the court would 
very reluctantly deny. It ought «not to be believed, that the de- 
partment, which superintends prosecutions in criminal cases, 
would be inclined to withhold it. What ought to be done, under 
such circumstances, presents a delicate question, the discussion of 
which, it is hoped^ will never be rendered necessary in this coun* 
tiy. \At present it need only be said, that the question does not 
occur at this time. There is certainly nothing before the court 
which shows, that the letter in question contains any matter the 
disclosure of which would endanger the public safety. If it 



187 

does contain such matter, the fact may appear before the disclo- 
sure is made. If it does contain any matter, which it would be 
imprudent to disclose, which it is not the wish of the executive 
to disclose; such matter, if it be not inunediately and essentiallji 
applicable to the point, will, of course, be suppressed. It is not 
easy to conceive, that so much of the letter as relates to the con- 
duct of the accused can be a subject of delicacy with the pre- 
sident. Every thing of this kind, however, will have its due con- 
sideration, on the return of the subpcena. 

Thirdly, It has been alleged, that a copy may be received in- 
stead of the original, and the act of congress has been cited Ih 
support of this proposition. 

This argument presupposes, that the letter required is a docu- 
ment filed in the department of state, the reverse of which may 
be and most probably is the fact. Letters, addressed to the pre- 
sident, are most usually retained by himself. They do not belong 
to any of the departments. But, were the fact otherwise, a copy 
might not answer the purpose. The copy would not be superior 
to the original, and the original itself would not be admitted, if 
denied, without proof that it was in the hand writing of the wit- 
ness. Suppose the case put at the bar of an indictment on this 
letter for a libel, and, on its production, it should appear not to be 
in the hand writing of the person indicted. Would its being de- 
posited in the department of state make it his writing, or subject 
him to the consequence of having written it I Certainly not. For 
the purpose, then, of showing the letter to have been written by 
a particular person, the original must be produced, and a copy 
could not be admitted. On the confidential nature of thislettef^ 
much has been said at the bar, and authorities have been produ- 
ced, which appear to be conclusive. Had its contents been orally 
communicated, the person, to whom the communications were 
made, could not have excus^ himself from detailing them, so 
far as they might be deemed essential in the defence. Their 
^ing in writing gives no additional sanctity; the only difference 
produced by the circumstance is, that the contents of the paper 
must b^ proved by the paper itself, not by the recollection of the 
witness. 

Much has been said about the disrespect to the chief magis- 
trate, which is implied by this motion, and by such a decision of 
it as the law is believed to require. 

These observations will be very truly answered by the deda-r 
ration, that this court feels many, perhaps, peculiar motives, for 
manifesting as guarded a respect for the chief magistrate of 
the Union as is compatible with its official duties. To go be- 
vond these would exhibit a conduct, which wcAild deserve some 
other appellation th^n the term respect; ^ 



188 

It IS not for the court to anticipate the event of the present 
prosecution. Should it terminate as is expected on the part ot 
the United States, all those, whp are concerned in it, should 
certainly regret, that a paper, which the accused believed to be 
essentisd to his defence, which may, for aught that now ap- 
pears, be essential, had been withheld from him. I will not say, 
that this circumstance would, in any degree, tarnish the reputa- 
tion of the government; but I will say, that it would justly tar- 
nish the reputation of the court, which had given its sanction to 
its being withheld* Might I be permitted to utter one senti- 
ment, with respect to myself, it would be to deplore, most ear- 
nestly, the occasion which should compel me to look back on 
any part of my official conduct with so much self-reproach as I 
should feel, could I declare, on the information now possessed, 
that the accused is not entided to the letter in question, if it 
should be really important to him. 

The propriety of requiring the answer to this letter is more 
questionable. It is alleged, that it most probably communi- 
cates orders showing the situation of this country with Spain, 
which will be important on the misdemeanor. If it contain 
matter not essential to the defence, and the disclosure be un- 
pleasant to the executive, it certainly ought not to be disclosed.' 
This is a point which will appear on the return. The demand 
of the orders, which have been issued, and whi^h have been, as 
is alleged, published in the Natchez gazette, is by no means 
unusual. Such documents have often been produced in the 
courts of the United States, and the courts of England. If 
they contain matter interesting to the nation, the concealment 
of which is required by the public safety, that matter will ap- 
pear upon the return. If they do not, and are material, they 
may be exhibited. 

It is said, they cannot be material,, because they cannot jus- 
tify any unlawful resistance, whicjh may have been employed or 
meditated by the accused. 

Were this admitted, and were it also admitted, that such re- 
sistance would amount to treason, the orders might still'be ma- 
terial; because, they might tend to weaken the endeavour to 
connect such overt act with any overt act of which this court 
may take cognisance. The court, however, is rather inclined 
to the opinion, that the subpoena, in such case, ought to be di- 
rected to the head of the department, in whose custody the 
orders are. The court must suppose, that the letter of the se- 
cretary of the n^vy, which has been stated, by the attorney for 
tlie United States, to xefer the counsel for the prisoner to his 
legal remedy for the copies he desired, alluded to such a mo- 
tion as is now made. " 

The affidavit on which the motion is grounded his not been 



189 

noticed, tt is believed, that such a subpoena, as is asked, ought 
to issue, if there exist any reason for supposing, that the testi- 
mony may be material, and ought to be admitted* It is only 
because the subpoena is to those who administer the govern- 
ment of this country, that sucli an affidavit was required 
as would furnish probable cause to believe, diat the testimony 
was desired for the real purposes of defence, and not for such 
as this court will for ever discountenance. 

When the chief justice had concluded his opinion, Mr. 
]^AC Re A addressed the court to the following effect: 

I hope, sir, that I have misunderstood an expression, which 
has just escaped from your honour; but the opinions of those 
gentlemen, who are near me, completely confirm my own con* 
cepticms. Your honour has declared, if I mistake not, that ^^if 
the present prosecution terminate as is wished, on the part of 
the United States." I hope, sir, that nothing has appeared in 
my conduct, nothing in the conduct of the gentlemen who are 
associated with me on the present occasion, and nothing in the 
conduct of the government, to produce s'uch a conviction in the 
breast of the court. Permit me, sir, to assure this court, if we 
feel any sentiment at all, that it is one of a very different de** 
scription. The impression which has been thus conveyed by 
the court, that we not only wished to have Aaron Burr accused, 
but that we wished to convict him, is completely abhorrent to 
our feelings. We trust, that it has rather accidentally fallen 
from the pen of your honour, than that it is your deliberate 
opinion* We wish for nothing, sir, but a fair and competent in- 
vestigation of this case. It is far from our wishes, that Aaron 
Burr should be convicted, but upon the most satisfactory evi- 
dence. And let me assure this court, that nothing would more 
severely wound my feelings, than if you or any other man 
should suppose it possible, that I myself, or the gendemen with 
whom I am associated, or the government which we have the 
honour to represent, should at all events, desire the convicticm 
of the prisoner. 

The Chief Justice replied, tlmt it was not his intention to 
insinuate, that the attomies for the prosecution, or that the ad- 
ministration, had ever wished the conviction of colonel Burr, 
whether he was guilty or innocent ; that his assertion was this : 
^^ Gentlemen had so often, and so uniformlyasserted, that co- 
lonel Burr was guilty, and they had so often repeated it before 
the testimony was perceived, on which that guilt could alone 
be substantiated, that it appeared to him probable, that they 
were not indifferent on the subject." 

Mr. Mac Re a begged leave to ppint out to the court a con^ 



190 

siderable difference between the opinions and wishes of the 
counsel for the prosecution; that from the testimony which 
they had examined, they thought it extremely probable, that 
Aaron Burr was really guilty; but that this was very different 
iVom wishing to find him guilty, or to convict him at all 
events. 

Mr. Hay observed, that his own conscience was satisfied 
with the course which he had pursued in this business; that he 
should attempt to secure the same sentiment by his future de« 
portment; and, provided he enjoyed that satisfaction, he was 
completely indifferent to the opmion of others ; and he should 
certainly pursue his own judgment. He asked, whether he 
might not send up the witnesses to the grand jury? 

' Mr. Burr then pressed upon the court the necessity of giv- 
ing the supplemental charge ; that it would be of considerable 
benefit in instructing the jury to separate what was proper in 
the evidence from what was improper; that if the charge was 
not delivered for several days, the jury might, in the mean 
time, be receiving very false impressions; and that their minds 
might be so completely involved in these impressions, that it 
would be impossible for them, to separate them from their de- 
cisions, even after the delivery of the charge. He conceived 
that the court ought either to prevent the witnesses from go- 
ing to the grand jury, or to deliver its supplemental charge. 

The Chief Justice replied, that on Monday morning he 
would deliver the charge, if all the necessary preliminary 
points could be settled. 

Mr. Hay then requested the clerk to swear four of the wit- 
nesses: Thomas Truxtun, William Eaton, Benjamin Stoddert, 
.and Stephen Decatur, who were accordingly sworn. 

Mr. Burr hoped, that the court would immediately take up 
the supplemental charge to the jury. What was the objection 
which the attorney for the United States has submitted to your 
honour, and on which you seemed to entertain some doubts? 

Chief Justice. — It is, \*hether the statute of Edward VI. 
is now in force in this country. 

Mr. Randolph. — We are ready on that point, sir. 

The clerk then proceeded to call four other witnesses to the 
bpok ; but when Erick Bollman appeared, Mr. Hay addressed 
the court to the following effect: 

Before Mr. Bollman is sworn, I must inform the court of a 
particular, and not an immaterial circumstance. He, sir, has 
made a full communication to the government of the plans, 
the designs, and views of Aafon Burr. As these coramu* 



191 

nicaltions might criminate doctor Bollman before the grand 
jury, the president of the United States has communicated 
to me this pardon (holding it in his hands) which I have alrea* 
dy offered to doctor Bollman. He received it in a very hesi- 
tating manner; and I think informed me, that he knew not 
whether he should or should not accept it. He took it from 
me, however, as he informed me to take the advice of counsel. 
He returned it in the same hesitating manner; he would neither 
positively accept nor refuse it. My own opinion is, that doc- 
tor Bollman, under these circumstances, cannot possibly cri- 
minate himself. This pardon will completely exonerate him 
from all the penalties of the law. I believe his evidence to be 
extremely material. In the presence of this court, I offer this 
pardon to him, and if he refuses, I shall deposit it with the 
clerk for his use. Will you (addressing himself to doctor 
Bollman) accept this pardon? 

Doctor Bollman. — No. I will not, sir. 

Mr. Hay then observed, that doctor Bollman must be car- 
ried up to the grand jury with an intimation, that he had been 
pardoned. 

Mr. Martin. — It has always been doctor Bollman's inten- 
tion to refuse this pardon; but he has not positively refused' it 
before, because he wished to have this opportunity of publicly 
rejecting it. 

Several other witnesses were sworn. 

Mr. Martin did hot suppose, that the pardon was real or 
effectual ; if he made any confessions before the grand jury, 
they might find an indictment against him, which would be 
valid, notwithstanding the pardon ; that the pardon could not 
be effectual before it was pleaded to an indictment in open 
court. 

Mr. Hay inquired, whether doctor Bollman might not go to 
the grand jury? 

. The Chief Justice suggested, that it would be better to 
settle the question about the validity of the pardon before he 
was sent to the grand jury. 

Mr. Hay. — I am anxious to introduce the evidence before 
the grand jury in a chronological order, and the suspension of 
doctor Bollman's testimony will make a chasm in my arrange- 
ment. He added, that however it was not very important whe- 
ther he was sent now or some time hence to the grand jury. 

Mr. Martin. — Doctor Bollman is not pardoned; and no 
man is bound to criminate himself* 



192 

The Chief Justici required his authorities. 

Mr. Martin. — I am prepared to show, that a party even 

{possessed of a pardon is still indictable by the grand jury, un- 
ess he has pleaded it in court. 

The other witnesses were sent to the grand jury, and doctor 
BoUman was suspended. 

Four other witnesses were then sworn. 

Mr. Hat. — I again propose to send doctor BoUman to the 
grand jury. 

At this time the marshal entered, and Mr. Hay inform- 
ed the court, that the grand jury had sent for the article 
of the constitution and the laws of congress relating to trea- 
son, and the law relating to the misdemeanor. 

Jacob Dunbaugh was sworn and sent to the grand jury. 

Some desultory conversation here ensued between the bar 
and the court respecting doctor BoUman, ^hen Mr. Hay ad- 
dressed the opposite counsel: Are youthen willing to hear doc- 
tor BoUman indicted? Take care in what an awful condition 
yo!4 are pladng this gendrman. 

Mr. Martin.— ^Doctor BoUman, sir, has lived too long to 
be alarmed by such menaces. He is a man of too much 
honour to trust his reputation to the course which you prescribe 
for him. 

The Chief Justice.— There can be no question but doctor 
BoUman can go up to the jury: but the question is, whether he 
is pardoned or not? If the executive should refuse to pardon 
him, he is certainly not pardoned. 

Mr. Martin. — But there can be no doubt, if he chooses to 
decline his pardon, that he stands in the same situation with 
every other witness, who cannot be forced to criminate him- 
self. 

Some desultory conversation here ensued, when Mr. Hay 
observed, that he should extremely regret the loss of Dr. BoU- 
man^s testimony. He believed it to be material. He trusted, 
that he should obtain it, however reluctantly given. The court 
would perceive, that doctor BoUman now possessed so much 
2eal, as even to encounter the risk of an indictment for trea- 
son. Whether he should appear before the grand jury, under 
the circumstance of a pardon being annexed to his name, might 
hereafter become the object of a distinct inquiry. In the mean 
time, he might go up without any such notification. 

The counsel of Mr. Burr acquiesced. 



Cnrsp Justice.— -Whetbei' he be really pard6ned or not, I 
cannot, at present, declare. I must take time to deliberate. 

Mr. Hay — Categorically then I ask you^ Mr. BoUman, 
do you accept your pardon? 

Mr. BoLLMAN.— I have already answered that question se* 
vend times. I say no. I repeat, that I would have refused it 
before, but that I wished this oppoitunity of publicly declar- 
ing it. 

Mr. Hay.-— If the grand jury have any doubts about the qnes* 
tions that they put to doctor Bollman, they can apply to the 
court for instructions. I assert, sir, that Mr. Bollman is a par- 
doned man. I wish the opposite counsel to prove that he is 
not. I therefore move, sir, that he be sent up to the grand ju- 
ry, certified by you, that he is pardoned. I make this motion, 
that gentlemen, who wish to discuss the question, may have an 
opportunity of adducing their arguments. 

Mr. Williams, counsel for Mr. Bollman.-— >There are three 
questions to be decided. 1st, Whether a witness be bound to an- 
swer any questions^ which tend to criminate himself, or afford a 
clue to evidence for that purpose f 2d, The operation of a par-r 
don, whether it change the question? but in this case, it having 
been, refused, the court cannot notice it. 3d, Who is to be the 
judge, the witness or the court, as to the propriety of answer- 
ing the question ? 

On the first question Mr. Williams laid down the following 
propositions : 1st, The rule of law is, that no man shall be bound 
to answer any question which shall accuse himself.-*-! Mac 
Nally's £v. 256. 2 Haw. c. 46. 2d, He shall not be bound to 
answer any questions which shall accuse himself of a misde- 
meanor. — 1 Mac Nal. 256. 3d, He shall not be called upon to 
calumniate himself. — 1 Mac Nal; £56. 2 State Trials, 822. 101 7 
to 1038, Tabsborough's case. 4th, He is not to defame him- 
self. — 1 Mac Nal. 256. 258. 2Stote Trials, 439. 5th, Not to an- 
swer insnaring questions.-— Mac Nal. 256. 6th, To ask a man 
if he is a Roman catholic is not permitted.— Mac Nal. 257. 
9 State Trials, 414. 2 Dougl. 593. 7th, Not bound to answer 
any question which tends to criminate himself. — Mac Nal. 257. 
4 State Trials, 605, 606. 8th, The case of Gooscly in this 
court, upon the trial of Reynolds; he was called as a witness, 
but not compelled to criminate himself, — had been acquitted the 
day before by the grand jury. So 1 Black. Rep. 27. 

As to the second question, the rule of law is the same, eveiy^ 
if the man be pardoned. 1st, A witness, although pardoned, 
shall not be bound to calumniate himself, for the pardon 
having placed him in statu quo, no question shall be askcJ4 

Vol. I. 2 B 



W4 

him>, which tends to make him contemptible, or do away the 
benefit of the pardon. — 1 Mac Nal. 256. 2 Sute Trials, 822. 
1035. If doctor BoUman were bound to acknowledge him- 
self acquainted with any treason, he was guilty of a very high 
misdemeanor, and therefore it would do away any benefit from 
the pardoil* But the court cannot notice a pardon, unless it be 
a pardon by statute: for if under great seal and accepted, 
yet it would be error in the court to allow it not pleaded. — 2 
Hawk. ch. 37, sec. 59. 64, 65. 5 Bac. 294. If party only entK 
tied upon pleading it, then if he refuse, court cannot tsike no- 
tice of iu Here party refusing to accept, court must say 
that he is not pardoned: for until it is pleaded, ^arty liable, is 
to be punished. For if he plead not guilty, the court will not 
allow him to plead it afterwards. — 2 Hawk. ch. 37, sec. 59. 
Bac. 294. As to the third question, the witness must be the 
judge of necessity : 1st, Because he can only know what the an- 
swer is, and the bearing it will have. 2d, If the court do decide, 
they must know what would be the answer ; and to get that 
from the witness would criminate himself, which I have shown 
he is not bound' to do. 

If it be objected, that by this means, no witness would give 
evidence against the accused, it may be answ;ered, 1st, The re- 
fusal is upon oath, because he affirms, that to answer it would 
be to criminate himself. 2d, Tou have the same obligation on 
him to answer that truly, as to speak truth upon any other sub- 
ject. 3d, If he perjure himself, in that, he would certainly do 
it to get clear of giving evidence against the accused. It is his 
privilege not to answer any question having that tendency. 
This rule is upon the following authorities : The court in a case, 
in 1743, in 4 State Trials, 414, note, states, to wit, "If you think 
it witt criminate yourself, you need not answer it." — 1 Mac 
Nal. 257 — 8. It is put to the witness and not to the court, 
because he knew what was to be the answer. If it be objected, 
that nothing is evidence against him, which he may say on his 
oath, the answer is, that it has been otherwise decided.— -2 
Doug. 398. 

Mr.. Martin would merely suggest a few additional autho- 
rities. Among these were 5 Bac. p. 293. 2 Hawkins, ch. 57y 
p. 59, 60. 65. Mr. Martin contended, that these authorities 
demonstrated that there were two kinds of pardons in England i 
one by parliament, and the other under the great seal. That the 
first exempted an individual from the cognisance of the court 
as to the particular crime for which he might stand charged i 
but that the latter was no bar to a judicial prosecution ; and was 
not indeed effectual, until it had been pleaded and allowed ia 
Court* Mr. Martin also quoted an authority from Salkeld to 



195 

sheWfinc orroborationof Mr. Williams's position, that no wit- 
ness, however exempted from the charge and necessity of cri« 
min&ting himself; however responsible on that account to the 
• law ; can be made to discredit himself by his own testimony. 

Mr. Williams also quoted another authority, to the same 
effect, from page 258 of Mac Nally^s Evidence. 

Mr. Mac Re a. — It is extremely uncertain, sir, whether Mr. 
BoUman will or will not answer the questions, which may be 
propounded to him by the grand jury. If he be the very 
honourable man, whom these gentlemen have represented, he 
certainly will not refuse to answer. But if he do refuse, it 
can only be upon the ground, that he is rcially a criminal, ft is 
not, therefore, necessary for us to determine this point at the 
present time. It is not necessary tp decide whether doctor 
Bollman is or is not a pardoned man. We do sincerely hope, 
that he will appear in the character of an honourable man ; and 
not refuse to answer the interrogatories of the grand jury* 
But if he should pursue that course, it will be then timeenough 
for us to bring this discussion before the court. 

Mr. Hat.— The proposition which I had stated, seems to 
me to be so evident, as to require little argument. I consider 
Dr. Bolljpan as a pardoned man; and therefore, I desired, that 
the court should certify that fact for the instruction of the grand 
jury. Gentlemen, however, seem themselves to concede the 
very point for which we are contending. Why do they so 
much expatiate on the consequences of a pardon, if they do not 
consider that one has been already established? Why do they 
wish to screen doctor Bollman, under the plea, that lie can* 
not be made to defame himself, unless they consider him not 
sufficiently secured by the possession of a pardon T As to the 
effect of a pardon, it is a distinct question, on which the court 
may hereafter instruct the grand jury. But at present, I wish 
the court merely to certify, that he is pardoned. 

Mn Martin replied, that if the gentleman had attended to 
his argument, he would have seen, that most of his authorities 
had borne upon the existence of a pardon, and not upon the 
effects of one. 

Chief Justice.— -Have any of you authorities to show 
when the pardon operates ? 

Mr. Martin. — Certainly from the time of pleading. 

Chief Justice. — You mistake my question : suppose the 
pardon to be lost, is it then valid? 

Mr. Martin. — If it be proved, that he had pleaded it to am 



196 

indictment, I presume an exempUlicatiion of it would answer 

every purpose- 
As another reasoo, sir, why doctor Bcrflroan has refused this 
pardon, permit me to say^ that it would be considered as an ad« 
mission of guilt. Doctor Bollman does not admit that he has 
b^en guilty. He does not consider a pardon as necessary 
for an innocent man. Doctor Bollman, sir, knows what he 
has to fear from the persecution of an angry government; but 
he will brave it alL The man, who did so much to rescue 
the marquis la Fayette fcom his- imprisonment, and who htm 
been known at so many courts, bears too great a regard for lus 
reputation, to wish to' have it sounded throughout Europe, that 
he was compelled to abandon his honour through a fear of unjust 
persecution/ 

After some desultory conversation, doctor Bollman was sent 
up to the grand jury without any particular notificatiou. The 
questions whether he bepardoned, and of course how far he may 
be called upon to disclose all that he knows, are reserved for fu* 
ture discussion and decision. 

Mr. Hay requested leave to inform the grand jury that fa- 
tigue alone had prevented general Wilkinson from attending them 
on that day; but that he should appear before them on Monday. 

Mr. BoTTs then observed, that there was one point in the sup^ 
plemental charge, which he wished to notice. In one part of the 
charge, the clause of the constitution, relative to treason, is 
quotedj; which clause recognises the necessity of two witnesses to 
prove an overt act. In a subsequent part, there seems to be an 
implication that one witness to an overt act is sufficient. How was 
this seeming contrariety to be explained ? 

Chief Justice. — Though the constitution declares that two 
witnesses are necessary to produce conviction, yet it may not be 
so strictly and absolutely necessary to authorise an indictment 
being found a true bill. My present impression is, that though 
there must be two witnesses to the general charge of treason, 
yet that one witness may be sufficient to prove one act, and 
another to prove another. Chief justice quoted the statute of Ed- 
ward VI. The law books made this discrimination between a trial 
and an indictment. 

Mr. Hay. — There is one important question worthy of our 
consideration. In your supplemental charge, sir, you have refer- 
red to thd statute of Edward VI. But no such statute is now in 
force here. A general law of the Virginia legislature, passed se- 
veral years ago, Hnthe year ) swept off all the Bridsh 
laws ; and then they set to re-enacting such as were congenial 
with our form of government. But this statute was certainly in 



197 

fiorce ac the commencement of our revolution; afid dieque'stioa 
is whether, if it were in force ihen^ it can be so considered notp* 
Do gentlemen contend, that we are bound by a statute, which the 
government has not adopted? 

At the close of the court, the Chief Justice observed, that he 
had explained the sense, in which the words, which had been re^ 
' marked on by Mr. Mac Rae, had been employed; that he had no 
desire that they should remain in the written opinion ; that he 
did not perceive that they were calculated to excite any feeling, 
or liable to be so misunderstood^ but as it was not his intention 
to convey the idea, that a conviction in any event, right or 
wrong, was wished; and as that idea had been inferred, and 
might hereafter be attached to them, by those who might see 
the opinion without the explanatory words, he had expunged 
them. 

Some desultory conversation ensued; after which the court ad- 
journed tiU Monday morning, eleven o'clock. 

Monday, June 15di, 1807. 

The court met according to adjournment. 

General Wilkinson was sworn and sent to the grand jury, 
with a notification that it would facilitate their inquiries if they 
would examine him immediately.^ 

Some discussion took place, relative to the form of the oath 
administered to the witnesses, before the grand jury; which at 
length was agreed to be proper* 

Mr. WicKHAM stated, that as the indictments were now 
pending before the grand jury, it was necessary to recal to the 
memory of the court, a circumstance which had been early sug« 
gested, that a number of improper papers might be exhibited 
before the grand jury, which ought to be prevented by the court; 
that the attorney for the United States had pledged himself to 
send up no papers which had not previously passed the inspec- 
tion of the court : but it had since occurred to colonel Burr'5 
counsel, that the witnesses diemselves might carry up such pa* 
pers, which would defeat, and render of no avail, the promise of 
the attorney; that it would be changing the duties of a wimess, 
which were to give testimony, not to cany papers. Finding that 
nothing coidd be done without an application to the court, Mr. 
Wickham submitted to them, whether they ought not to instruct 
the grand jury to receive no papers, but dirough the medium of 
the court. 

* On the appearance of the general in court, it was said that his coun- 
tenance was calm, dignified, andcommatiding; while that of colonel Burr was 
mailced by a haughty contempt 



/ 



^ 



1 



198 

Mr. Hat said, that the witnesses would^not deliver any papers^ 
that he hoped the court would not act upon a mere suspicioni 
that the witnesses would carry up improper papers; but that it 
was extremely probable, that general Wilkinson, in delivering 
his evidence before the grand jury, might find it necessary to re- 
fer to certain letters, which he had received, and to papers and 
documents, relative to these mj'sterious transactions, in order to 
refresh his memory. That he would not produce these as distinct 
and substantive evidence; but as so many private memoranda, 
in order to strengthen his recollection of the history of those 
transactions; and to enable him to give a more connected and 
full narrative. Mr. Hay hoped, that after the splendid example 
of patience, which the grand jury had displayed, they would not 
be interrupted in the examination now commenced; but that he 
had no objection to the court sending up by word, or by writ- 
ing, such instructions to them on this s\ibjectas might be deem-> 
ed proper. 

Mr. BoTTs confessed, that after what had passed, this oppo« 
sition surprised him. On a former day, he understood that it 
was agreed, that no papers should be sent to the grand jury, but 
such as had been inspected by the court. 

Mr. Hat begged leave to explain. He had promised, before 
the arrival of general Wilkinson, to send up no papers without 
the inspection of the court. That he had at that time, several 
authenticated papers, and several affidavits ; and that he had aa 
impression (though not a very decided one) that' they ought not 
to be submitted to the grand jury. At that time gendemen seeip- 
ed to apprehend, that certain papers and cyphered letters were 
to be sent up to die grand jury, without any previous motion* 
He had promised, and he would still pledge himself, to avoid 
this course. But it might happen that genei^ Wilkinson had va- 
rious papers to connect, explain, and enlarge his narrative. If 
general Wilkinson had brought these p^ers from New-Orleans, 
and now produced them before the grand jury, in order to refresh 
his memory, and enable him to explain, and amplify his own evi- 
dence, it would be correct; and no departure from his word, to 
which he had substantially adhered. He hoped, therefore, that 
gendemen would not accuse him of a breach of faith, and that Mr. 
Botts would withdraw his expression of surprise. 

Mr. BoTTS. — My surprise continues. I believe the attorney 
for the United States is incapable of any thing like a wilful 
breach of promise; but while I am willing to admit his intelli- 
gence, fairness and honour, I will say, without intending, and I 
hope without seeming to cast a reproach upon a character, whose 
head and heart are inferior to none, that a strong bias has stolen 
op that gendeman's mind, which ought to be vigilantly waK:hed. 



199 

He was stiO' surprised at the gentleman's proceedings, becamse 
the very principle which he supports as to the papers, would go to 
prevent the introduction of witnesses before the grand jury. Pa- 
pers, he admits, are not proper to go before the jury; and there- 
fore, if witnesses are to carry them, they themselves oug^t not 
to go. If Mr. Hay were called before the jury, he would pro- 
duce no papers but what had passed through the court. But Mr. 
Hay is not the only prosecutor in this business. There is another 
equally actfve, and more deeply concerned. Mr. Hay admits^ 
that this zealous prosecutor may produce his papers before the 
jury. If he merely produce papers to refresh his memory, any 
instruction which may go from the court, will be perfecdy inncf^ 
cent in its effects; but it is possible that such an instruction may 
be necessary to repress die introduction of very improper papers, 
which he might hope to convey to the multitude abroad, through 
the channel of the grand jury. We are asked, why we suppose, 
that improper papers will be carried to the grand jury ? There / 

was a particular reason to recommend this vigilance. It was un- 
derstood that a species of plunder had been permitted; that the 
post-offices had been robbed; and that letters thus improperly 
obtained, ought npt to be laid before the grand jury, without be- 
ing first examined by the court. It was, m fact, impossible that 
any papers, obtained by such means, could be legal evidence. Mr. 
Botts here read as an authority, from the eighth volume of the 
American Museum, judge Grimpkie's charge to the grand jury, 
to show that written evidence ought not to be heard by a grand 
jury; it being a well established principle, that a grand jury ought 
not to hear such evidence, till it is examined, and declared to be ' 

authentic^ by the court. 

Chiep Justice. — Neither affidavits nor papers, containing 
distinct substantive testimony against the accused, ought to be 
sent to the grand jury. 

Mr. Martin. — Mr. attorney has conceded this in substanccj 
and we admit that any witness may refer to papers to refresh his 
memorj^ 

Mr. Hay. — I am willing to adhere, inform and substance, to 
my promise. I know not what papers general Wilkinson naay 
produce. I was with him yesterday, and saw him in possession 
of a great niany. But which of them he may choose to refer to, 
I cannot possibly say. If gentlemen wish to know the object of 
my visit to him, I will tell them. 

Mr. Mabtin. — It is unnecessary. 

Mr. Hat. — I had said before in this court, that I would not 
undertake to defend general Wilkinson ; but the result of my 
ccm^rs^iion with him yesterday is, that it is my duty to defend 



200 

him; because I am well satisfied that he is an honest man, and a 
patriot. All my suspicions, imbibed from the mysterious circum- 
stances in the case, have completely vanished; and being con^^ 
i vinced of his unsullied integrity, I shall defend him with the 

most perfect sincerity. 

Mr, Martin.— The gentleman has taken a good way to re- 
move his unfavourable impressions, if that can be called a good 
one, which consists in hearing but one side of a cause. He has 
heard Wilkinson's own story. I wish he would hear colonel 
Burr's story; perhaps his impressions against him might also be 
' removed. 

^ Mr. Hay. — I have heard his story from his* counsel; but they 

have strengthened my conviction against him. 

Mr. Wirt said, that he had perused the authority quoted by 
Mr. Botts, and that he was satisfied, that the papers referred to 
by judge Grimpkie, were only affidavits. [Mr. Wirt read quo- 
tations to prove his position.] That the distinction was, that 
where a piece of written testimony was distinct and substantive^ 
it was not admissible as evidence before a grand jury; but where 
it was explanatory of viva voce evidence, it was proper and ad- 
missible. That it was sometimes necessary to resort to written 
papers as the very best testimony. For example, said he, suppose 
general Wilkinson should state, that on such a day he received 
a letter from Burr, by the hands of Boilman or Swartwout : 
would not Burr's letters, in such case, with Wilkinson's oath, 
that they were the hand writing of Burr, be evidence even be- 
fore a petit jury, and of course before a grand jur)"? Such letters 
are the best evidence of their own contents. If he were to make 
a verbal statement of their contents, would not the jury have a' 
right to say to him, ^^ Produce the original, we demand it as the 
best evidence ?" Suppose general Wilkinson were to produce the 
cyphered letter, would it not be competent to the jury to say,^ 
*^ Produce it; we shall receive it, and explanations of its con- 
tents?" This shows, that the objection, as made generally to all pa- 
pers, is fallacious and cannot be supported by law or reason. There 
are many different links in the chain of evidence. It is manifest, 
that written documents are sometimes not only evidence, but the 
very best, which can, in the nature of things, be adduced. 

Mr. WiCKHAM. — ^The counsel said, that he would send up no 
« papers. But it is contended that the witnesses may carry up pa- 
pers to the grand jury. It is a distinction without a difference. 
The object is to prevent the admission of improper evidence; 
and it is precisely the same thing in substance to receive it from a 
witness who carries, as from the attorney who sends it. When a 
petitjuryis empaneled, thecourt inspect the papers before the jury 



201 

are permitted to see them. The gentlemen have laid down a 
broad position, that any witness may have recourse to any pa* 
pers to strengthen his recollection. This is certainly not correct. 
I heg leave to remind the court of a case (judge Chase's trial), 
which happened before the highest tribunal in this country, the 
senate of the United States, where it was decided, that a wit* 
ness (Mr. Hay himself) was not permitted to read memoranda^, 
even to refresh his memory. Mr. Wirt admits that an affidavit 
may not be read, but that a paper, not on oath, may be read. 

Mr. Wirt. — ^The gentleman is uncandid. I wish he would 
understand me, and answer me candidly. He puts, an absurdity 
into my mouth, which I disclaim. I wish the gentleman to state 
his argument against my argument as it was, and not according 
to Jiis own deducti6ns. 

Mr. WiCKHAM. — I agree that the gentleman did not state an 
absurdity in terms: but an absurdity inevitably follows from 
what he said. The court alone ought to-determine what papers 
are evidence and proper to be at all heard by a grand jury. 

Mr. Hay. — I beg leave to make one obser\radon. I care not 
for the decision 'in Chase's trial; nor do I know that it was as 
now stated: but if it were, I assert, that those who made it, knew 
that it was contrary to law. In the triab of Hardy, Tooke and 
Thelwal, a contrary principle was determined. A witness, who 
was a spy of the government, had no memory «or recollection of 
the circumstances he was to prove, but from his reference to 
written memoranda. Mr. Wickham knew this decision not to 
be law, but he mentioned it merely because I was the witness in 
that case. 

Mr. BoTTs. — Mr. Hay-s observation is the longest I ever 
heard. The senate did so decide, and perhaps unanimously; and 
it was composed of the ablest lawyers from all parts of the union. 

Mr. Hay contested the fact of decision in that manner; but he 
was irritated, and did not recollect precisely how it was; but he 
was informed that it was not decided unanimously, though it 
might have been so pronounced. 

Messrs. Martin and Wickham stated, that the decision was 
by eighteen senators against sixteen, (which was the fact)» 

Mr. BoTTs. — Mr. Hay and Mr. Wirt take different grounds. 

Mr. Martin contended, that the court was to decide what 
evidence was to go to the grand jury. He cited Danby's case^ 
where a witness gave a deposition und/^r the statute of William 
and Mnry ; he prevaricated before the grand jury, and they sent 
for his deposition to confront him. The court decided that they 
should not have it, because it was improper for them to «ee it. 

Vol. I. 2 C . 



/ 



202 

CuisF JusTicK.<i»— There is fi difference between the grtad 
9fkd petit Jury. The fonper are to make inquiry; they may send 
for witnesses; directions ought therefore to be given them in 
general tt^rms. But I am not satisfied that a court ought to in- 
spect the papers which form a part of a witness'^ testimony be* 
fore he is sent to the grand jury* This would tender it necessary 
to examine the witnesses in open court. The chief justice here 
delivered the opinion of the court, reduced to writing, in (»rder 
to be laid before the grand jury. Its purport was, to instruct the 
grand jury not to inspect any papers but such as formed a part 
of the narrative of the witness, and proved to be the papers of 
the person against whom an indictment was epdiibited. 

Mr. Hay objected to this form of instruction. Suppose a pa- 
per from a person closely connected with the accused were ad- 
duced; as for instance, doctor BoUman. Such a p^r may be 
important to prove to the jury the integrity and proper conduct 
of general Wilkinson. It may have had a material influence on 
his mind) even if not genuine. 

. Chief JusTiCE.-^Your argument is, that the papers are to 
be admitted to justify the conduct of the witness; but they ought 
not to bear upon the accused. 

Mr. Hay.— The prejudices in the western and other papers 
against general Wilkmson's character, representing him as con- 
nected wi.th Aaron Burr, make it necessary that his reputation 
should be vindicated. He comes before the jury as a suspected 
person. The language of the cyphered letter seems to counte- 
nance the conjecture. It may be necessary to exhibit these pa- 
pers to support the credit of the witness. 

Chief Justice.— 'The opinion may therefore be amended, 
by adding that such papers are also admissible as tend to justify 
the witness, but not to bear upon the prisoner. 

Mr* WicKHAic,.— General Wilkinson i^n^r on his trial. Their 
object i^ 9ot to vindicate Wilkinson, but to accuse Burr, who i^ 
on his trial. Wilkinson's oath is. to be supported by proving pa- 
pers by his oath; so that he is to support himself. This is not 
legal testimony, and ought not to be admitted. It is true, that 
these papers do not criminate colonel Burr directly, but they 
ikear upon him by vindicating Wilkinson; and it is a sound rule 
of law, that what cannot be done directly shall not be permitted 
to be done indirectly. 

Mr. Wirt.— The court does not contravene that doctrine. 
On Shaftsbury's trial, the grand jury wished to examine witnesses 
as to die credibility of a witness. Pemberton rejected such 
evidence,, but that opinion has since been exploded. It is the 



ao3 

« 

privilege and duty of die grand juty to judge of die credibility 
of witnesses. If they have doubts of the crediUlity of Wilkin* 
son, they ought to inquire into^ and be satisfied upon the point; 
They may call upon him for an explanation as to faets and cur^ 
cumstances, which he can aifcml by the production of his paperm 

Mr. Hay proposed an amendment to the court^s instructions; 
*^ that any paper might be exhibited wluch came from the accu* 
sed, or any other person proved to be an accomplice of the ac- 
cused, or that formed a part^orwas explanatory of the witness's 
narrative." 

Mr. Martin. — The proposed alteration suiis the gendemto's 
purpose. There is no paper under heaVen, but what might b6 
introduced as part of his narrative; even papers procured by 
breaking open letters from the post office, dr seia^ed by violence 
or robbery, might be so used under tiiat general definition. 

The Chief Justic£ wished to send some specific instruction^ 
to the grand jury, to prevent the delay that might arise from 
their coming into court, when they had a particular paper before 
them, on which they would wish to Obtain the instruction of the 
court. 

Mr. Hat contended, that the alteration he had suggested wa^ 
proper; and quoted authority to show, that when a man was 
once proved to be an accomplice or connected with another, 
what was in proof against the other, was good proof against 
him: [which see hereafter]. 

Cnisr Justice. — Is there any authority to show that papers 
communicated by an accomplice can be used as evidence? 

Mr. Hat. — ^The doctrine is, that ^ where a man is proved to 
be an accomplice, his papers may be used against anotner.^* tn 
Home Tooke's tnal, pages 86, 87, Erskine conceded, that where 
die prisoner's connection with a third person was proved, the 
letters or papers of that third person, relating to the question be- 
fore the court, were testimony against him. 1 East^s Crown Law, 
page 97. 

Mr. Wirt added, that there was no difference between ih6 
words or writings of an accomplice as evidence ; in support of 
which he referred to the trials of Hardy, Tooke and Thelwal, 
[which see hereafter], and to 6th Dnrtifoid & East's Reports, p. 
537, where it was solemnly determined, on the trial of William 
Stone, for high treason, that ^^ a letter sent by one of the con« 
spirators in pursuance of the common design, with a view of 
reaching the enemy, was evidence against ail persons -engaged 
in the same conspiracy.'' 



204 

Mr. Martin.— The cases mentioned by the gentleman arc 
cases of treason, for a conspiracy to kill the king:, it is only in 
such cases, where the crime consists in the imagination of the 
mind, ^^to compass the death of the king,*' that such testimony 
is admissible; but where ^^ levying war" is the charge, the decla- 
rations or acts of third persons, however connected, cannot be 
admitted as evidence. 

Mr. WiCKHAM.— :Mr. Wirt's authorities do not apply to the 
case of levying war. The constitution of the United States says, 
that no person shall be convicted except by the evidence of two 
witnesses, or his own confession in open court Colonel Burr's 
confession out of court could not be used against him; but it 
seems by the doctrine of gentlemen, that the confession of 
others can be adduced against him. 

Mi*. Hat.-— There are several good lawyers on the grand ju- 
ry* Mr. Martin says it would take him a day to state what he 
had to say on this subject. It would take him his whole life to 
prove the distinction he contends for. Modem systems of evi- 
dence lay down the doctrine without the dbtinction. There is 
much absurdity in the distinction. The same rule ought to pre- 
vail in both cases. Levying war against the states, is a higher 
offence than compassing the death of the king. In the latter 
case, the declarations of third persons connected with the per- 
son accused, are admissible evidence: a fortiori they ought to 
be in the former case. Mr. Wickham says that confession in 
open court is requisite to convict. He does not understand the 
doctrine correctly. It is this, sir, that where a party is convicted 
on his confession only^ it must be in open court: but where the 
confession itself is proved as evidence of an overt act, it must 
be proved by two witnesses. This discussion is an unnecessary 
waste of time ; it may be thus prolonged at gentlemen's plea- 
sure; but it is only proper to tell the jury to asi advice when 
they want it* 

Mr. Martin thanked the gendeman for enlightening his 
mindf but insisted that such a construction as that contended 
far by him, was novel and extraordinary. 

Mr. BoTTs, after some facetious remarks on the doctrine 
of pleas, rejoinders and rebutters, &c. as exemplified in the 
cause, proceeded to this effect: The declarations of persons con- 
nected in a conspiracy, are not to be received in evidence until 
the conspiracy itself is proved. Previously, the association and 
the extent of it must be proved. The association itself is not to 
be proved by such declarations. Such evidence is admissible 
unaer very limited restrictions. It is unreasonable and absurd 
for such evidence to prevail over evidence of a superior nature; 



205 

over evidence of overt acts. Neither conspiracy nor intention h 
war. The best evidence which the nature of the case is suscep* 
tible of, must be produced on all occasions. You make it out by 
such an unreasonably dangerous doctrine as this is, that where 
a guilty intention is once formed, it cannot be forsaken with safe- 
ty; for if it be admissible evidence, a previous declaration may 
he proved against a man after he his i^pented and relinqoiahea 
his criminal intentions. 

Mr. Hat informed the court, that the grand jury had sent for 
doctor Bollman; that they wanted him to dec) pher, if he could, 
a cyphered letter annexed to Mr. Willie's affidavit, and which 
he held in his hand. That Mr. Willie, the reputed secretaiy of 
Mr. Burr, would prove the identity of the paper, and doctor 
Bollman, it was expected, would interpret iu 

Mr. Martin hoped the affidavit would be severed from the 
letter to which it was annexed. 

Mr. Hat consented ; and Willie who was absent, was sent for. 

The Chief Justice declared, that he did not wish to pro- 
nounce an opinion on the distinction as to the evidence in the two 
kinds of treason, without seeing authorities referred to. That he 
was inclined to think that such a distinction as was stated might 
exist. 

Here the chief justice delivered the instruction, as amended, 
to the marshal, to be transmitted to the grand jury. It was not 
read in court. 

Mr. Hat wished the expression concerning '^ credibility^^ to. 
be struck out, as implying a doubt. 

Chief* JusTic£.*-^Tliat idea was not suggested by the court; 
such evidence is deemed inadmissible, except for the purpose of 
supporting the credibility of witnesses. 

Mr. Hat wished the latter clause to be altered, as the grand 
jury might think themselves bound to make application to the 
court; and that showed the impropriety of giving such instruc- 
tions at all. I 

Mr. BoTTs. — It is indecorous to be consuming time until the 
grand jury shall have returned ; their own excellent understand* 
mg will condemn this conduct.* 

Mr. Hat. — General Wilkinson is not under examination. 

Mr. WiCKHAM. — Gendemen think general Wilkinson the 
sole patron of the cause, but there are other witc^ess^s. . 

Mr. Hat« — None who are expected to have any papers. Mr. 
Hay again produced the cyphered letter, annexed to Willie's 
affidavit, (Willie appearing in court.) He then proceeded; 



206 

iTfab 18 the paper which I wish to transmit to the grand jury. It 
is addressed, I understand, to doctor BoUman under a fictitious 
name, and is all in the hand writing of Mr. WiUse* 

Mn BoTTs objected to its being sent up to the grand juty; that 
he understood that no paper was to be laid before them, that was 
not material to the cause, whether it could or could not be authen« 
ticated; and that gentlemen must therefore prove both its materi' 
(zlity and its authenticity. 

Mr. Hat.— -A hard proposition indeed, when it is written 
partly in cyphers and partly in German! I deem it material, be- 
cause I understand it was either dictated by the accused, or first 
written by him, and afterwards written by his secretary, and at 
hb request; it is addressed to Henry Wilboum alias £rick BoU- 
man. I wish it to be sent up while doctor Bollman is before the 
grand jury. 

Mr. BoTTs.— Our wishes are at issue. 

Mr. Wirt.— *May it not be received under the instructions 
already sent up{ 

Mr. BuRR.-^The paper is now in possession of the court; it 
is not to be sent up to the grand jury, but under die judgment of 
the courts; and of course die court must be satisfied with the ma- 
teriality of the paper. 

Mr. Hat. — ^The accused is mistaken in point of fact. The 
paper is in my possession* Though I considered myself bound 
to show it to the court according to my agreenient, I have not 
yet delivered it, nor am I bound to deliver it- 

Mr. WicRBAM.-->Why was it offered to die court, if it were 
not to be put into their possession? If it be merely brought into 
court that it may be sent to the grand jury, and not considered 
as in possession, or under the control of the court, any paper 
may be conveyed to them in the same manner. Mr. Hay asserts, 
that it is addressed to E. BoUman. But how has it been obtain- 
ed? Has it not been taken from the post-office? Has it not the 
post-office mark on it ? Has it not been obtained by felony ? He 
wished to see it. Mr. Hay refused to show it, and said that he 
would know what to do with papei's hereafter. [He was understood 
to deny that there was any post-office mark on it; this however 
may be a mistake.] 

Mr. WiCKHAM demanded as a matter of right, that the pa- 
per should be delivered to him. 

Mr. Hat. — I deny that the paper is in possession of the court, 
or that it was offered by me. If it were, I acted improperly. 
There is no precedent to justify the doctrine, that I was com" 



2207 

fdkd to offer it. A 1>aper ofertd to the court is either deiivered 
or read. I did neither. I have a right to send any paper to the 
grand jury t under the directiooa ah*esidy received by tJiem; un- 
&88 it be explained by Willie and BoUman, it will be no more 
than an oak leaf. I hope I shall be permitted to pursue the usual 
and regular course. 

Mr. WiCKHAM*— If the paper be not before the court, I wish 
to know what is the question? Does he offer it to the court? 

tMr. Hay. No.] How then can any notice be taken of it? How can 
le send it up to the jury ? By the marshal i He is the o£Bcer of 
this court, suid bound to pursue its orders. By Mr. Willie ? He 
is but a witness and not bound to carry it. If any paper go 
from the prosecutor to the grand jur}', it must be with the leave 
of the court. If a wimess go up, it 19 because he is presumed 
to be a relevant witness; but if it be a paper, how can its rele* 
vancy be estabtished, until its contents and materiality are known? 
If an improper paper be sent to the grand jury, the isdictment 
vaay be quashed, because founded on iUeg^ evidence. Was not 
the leave of the court asked? If it were, tlmti^ it in the power 
of the court. If it were not asked, the whole is improper and il- 
legals As to what they say they can prove respecting the paper, 
let them first prove it. When they db, the paper may be proper. 

Some ingenious sparrings between Messrs. Wickham and 
Wirt amused the aucKence a moment; when, 

Mr. BoTTs objeeted to the transmission of the paper. It was 
immaterial, or it was not; If it were immaterial, why embarrass 
the jury with it? If it contained pertinent matter, it was cer- 
tainly wicked matter, in which Mr. Willie may be himself con- 
cerned. If he be sent to the grand jury widi this paper, what 
would he say about it? Would the court wish him to say any 
tluDg that would criminate himself? We have a right, said Mr. 
Botts, to see this paper. Perhaps we shall find, that it has been 
filched from the post-office, contrary to the eighth amendment of 
the constitution, which protects every man's papers from unrea- 
sonable searches and seizures. If it has been obtained by such 
illegal and violent means, perhaps the court would arrest it; 
even the grand jury would not dirty their fingers with it. 

Some desultory conversation ensued^ when Mr. Willie was 
called to the court. 

Mr. Williams, his counsel, hoped that no question would be 
put, the answer to which mig^t tend to criminate himself. 

Mr. Mac Rae.— -Did you copy this paper? 

Mr. Williams, (after consulting with his client)— *He says, 
that if any paper he has written have any effect on any other per- 
son, it will as much affect himselfl 



208 

Mr. Wirt. — He has sworn, in his deposition, diat he did not 
understand the C3^her of this letter. How then can his merely 
copying it implicate him in a crime when he does not know its 
contents ? 

Mr. Mac Rae.— We will change our question. Do you un- 
understand the contents of that paper i 

Mr, Williams.— He objects to ^swering. He says, that 
though that question may be an innocent one, yet the counsel for 
the prosecution might go on gradually, from one question to ano- 
ther, until he at last obtained matter ,enough to criminate him. 

Mr. Mac Rae.— -My question is not, *^ Do you understand 
this letter, and then what are its contents?" If I pursued this 
course, I might then propound a question to which he might ob- 
ject; but unless I take that course, how can he be criminated? 

Mr. BoTTS.— If a man know of treasonable matter, and do 
not disclose it, he is guilty of misprision of treason. Two cir- 
cumstances, therefore, constitute this crime : knowledge of the 
treason, and concealment of it. The knowledge of the treason, 
again, comprehends two ideas : that he must have seen and un- 
(krstood the treasonable matter. To one of these points, Mr. 
Willie iscalled upon to depose. If this be established, who kiiows 
but the other elements of the crime may be gradually unfolded, 
so as to implicate him. The witness ought to judge for himself. 

Mr. Mac Rae. — I did not first ask, if he copied, and then un- 
derstood it? but first, if he understood it? Had he answered this 
question in the affirmative, I certain]y should not have pressed 
the other question upon him, because, that might have amounted 
to self-crimination ; but, if he did not understand it, it could not 
criminate him. ^ 

Mr.HAT.-^I will simply ask him, whether he knows this letter 
to be written by Aaron Burr, or by some one under his authority ? 

The Chi£7 Justice said that that was a proper question. 

Mr. Williams. — He refuses to answer; it might tend to 
criminate him. 

The court were of opinion, that Mr. Willie should answer 
upon oath, whether, or not, he thought that answering the pro- 
posed question, might have a tendency to criminate himself. 

Here a long desultory argument ensued. 

Chief Justice. — Has the witness a right to refuse to answer? 

Mr. Williams. — The knowledge of the treason, and con- 
cealment of it, amount to a misprision of treason. 

Chi£¥ Justice. — ^The better question i>, Do you under- 
stand it? 



209 

Mr. Williams.— -He ought not to have such a question put 
to him, because he might be obliged to answer ^^ Tes*^ He ought 
not to be compelled to answer, if it might/os^i^/y criminate him. 
The witness is to judge lor himself, though the question may not 
seem to affect him. He referred to the case of young Goostfly 
before referred to by Mr. Randolph. 

Mr. BoTTs. — I will give Mr. Hay the benefit of an autho- 
rity, 1 Mac Nalfyy 257j 258. which shows, that the possibility 
of crimination is sufficient to 'excuse the witness from an- 
swering. 

Mr. Williams. — What the witness says here, tending to 
his own crimination, may be used as evidence against him on 
a prosecution. If he answer at all, he is deprived of the pri- 
vilege given by the law, not to criminate one's self. 

Chief Justice.— *If he be to decide upon this, it must be on 
oath. He asked Willie, whether his answering the question, 
whether he understood that letter, would criminate himself? 
He answered. It may in a certain case. 

Chief Ju8TiCE.->-I wish to consider the question until to- 
morrow. 

Judge Griffin to Mr. Williams. — The case of Goosely 
was not as you represented it. It was the court who knew, 
that the witness was one of those who robbed the mail. 

Mr. Hat. — The doctrine is most pernicious and contrary to 
the public good. 

Mr. WiLLiAMs.^^The public good does not require the 
conviction of colonel Burr so much as to dispense with the law. 

It was then agreed that the point should be argued to-mor- 
row, and colonel Burr's counsel promised to produce their au- 
thorities to show, that Willie could not be compelled to answer 
such questions, as might in his own opinion tend to criminate 
himself. 

The court thien adjourned till to-morrow. 

Tuesday, June 16th, 1807. 

As soon as the court met, Mr. Hay produced and read the 
following letf:er from the president of the United States, in an- 
swer to his letter on the subject of the subpceaa duces tecurn^ 
observing at the same time, that he read it to show the dispo- 
sition of the government, not to withhold any necessary papers, 
and that if 'gentlemen would specify what orders they wanted, 
they would be furnished without the necessity of expresses. 

Vol, I. 2D 



210 

g' ' Washington, June 12th, 180r. 

Your letter of the 9th is this mpment received. Reserving 
the necessary right of the president of the United States, to 
decide, independently of all other authority, what papers coming 
to him as, president, the public interest .permits to be communi* 
cated, and to whom, I assure you of my readiness, under that 
restriction, voluntarily to furnish, on all occasions, whatever 
the purposes of justice may require. But the letter of general 
Wilkinson of October Slst, requested for the defence of colo- 
nel Burr, with every other paper relating to the charges against 
him, which were in my possession when the attorney-general 
went on to Richmond in March, I then delivered to him; and 
I have always taken for granted he left the whole with you. If 
he did, and the bundle retains the order in which I had ar- 
ranged it, ^ou will readily find the letter desired, under the date 
of its receipt, which was November 25th; but lest the attorney 
general should not have left those papers with you, I this day 
write to him, to forward this one by post. An uncertainty, 
whether he be at Philadelphia, Wilmington, or New-Castle, 
may produce delay in his receiving my letter, of which it is 
proper you should be apprised. But a\) I do not recollect the 
whole contents of that letter, I must be e leave to devolve on 
you, the exercise of that discretion which it would be my right 
and duty to exercise, by withholding th e communication of 
any parts of the letter which are not dire»ctly material for the 
purposes of justice. With this application, which is specific, a 
prompt compliance is practicable; but whe.n the request goes 
to copies of the orders issued, in relation to colonel Burr, to the 
officers at Orleans, and Natchez, and by the secretaries of the 
war and navy departments, it seems to cover .t correspondence 
of many months, with such a variety of officei's civil and mili- 
tary, all over the United States,, as would amoi int to the laying 
open the whole executive books* I have desired the secretary 
at war to examine his official communications, and on a view 
of these we may be able to judge what can an d ought to be 
done, towards a compliance with the request. If the defendant 
allege, that there was any particular order whici ^, as a cause, 
produced any particular act on his part, then hi ) must know 
what this order was, can specify it, and a promp t answer can 
be givein. If the object had been specified, we migl U then have 
had some guide for our conjectures, as to what pai t of the ex- 
ecutive records might be useful to him. But with a perfect wil- 
lin^ess to do what is right, we are without the mdications 
which may enable us to do it. If the researches of the secre- 



211 

» , 

taiy at war should prodace any thing proper for commoiiiGk- 
tion and pertinent to any point we can conceive in the defence 
before the court, it shall be forwarded to you. I salute yon with 
esteem and respect. 

TH- JEFFERSON. 
George Hay, Esqn 

Some conversation ensued, about the specification of the pa- 
pers wanted from the executive. 

Mr. Hat stated, that in his communication to the presi- 
dent, to which this letter was a reply, he had mentioned these 
papers in the terms by which he thought the opposite counsel 
would probably have described them. The president, however, 
did not deem this description sui&ci^nt. 

Colonel Burr's counsel then stated, that they had sent an 
express to Washington for these papers, with a subpoena to the 
president, and that it would appear on the return, whether they 
could obtain them or not. 

The Chief Justice recommended a certain order in the 
debate, and that only two counsel should speak on each side; 
that it would be the best course on every point of subordinate 
importance, for the counsel on one side to open the motion or 
argument, the opposite counsel to reply, and the party who 
opened, to close the debate, unless some new matter rendered 
a departure from this rule proper. 

Both parties acquiesced in the propriety of this arrangement, 
except that Mr. Martin said, that as there was no other busi- 
ness before the court, there was^no necessity of adhering to tht 
rule, limiting the number of counsel to speak. 

Mr. Hay hoped the rule would be observed ; It would re- 
lieve himself and some other gentlemen. He then begged leave 
to call the attention of the court to a subject mentioned yes- 
terday; that doctor Bollman had gone up before the grand juiy« 
What his answers were he knew not; byt he thought he ought 
to be sent to the grand jury with Willie, that he might inter- 
pret, and Willie could authenticate the cyphered letter; hence 
arose the necessity of deciding the proposition that he was a 
pardoned man. 

Mr. BoTTs hoped, that they would not be interrupted in the 
discussion of the question about Willie, which they were alx>at 
to begin. 

Mr. Hat was willing to discuss either point first. 

Here a desultory conversation ensued, in which Mr. Hay 
, insisted that doctor Bollman was a pardoned man, and ought 



212 

to communicate all he knew to the grand jiiry; which was dc« 
nied by the other side ; when doctor Bollman, addressing him- 
self to the court, said, I have answered every question that yf9S 
put to me by the grand jury. 

Chief Justice. — Is there any obligation to ask doctor Boll- 
man if he can decypher the letter? 

Mr. Martln. — It will be time enough to discuss that ques- 
tion, after the letter shall have been before the grand jury. 

Mr. Mac Rae. — I wish the question now put. I asked 
Willie whether he understood that part of the letter which is in 
cypher: he could not be criminal, if he did not understand it. 
I wish the part which is written in German now to be explained, 
to show that there is nothing criminal in it. I wish Bollman to 
translate that part. 

Chief Justice. — I had rather proceed with the other point 
now: how far a witness may refuse to answer a question, which 
he thinks would criminate himself. 

Mr. BoTTs. — I am glad to be relieved from the necessity of 
showing the versatility of gentlemen, who fly from one point 
to another. I am sorry they should attempt to drive us from 
the discussion. The oblique insinuation of Mr. Hay against 
Willie, seeming to presuppose his guilt from his exercising the 
privilege of not answering the questions propounded to him, 
must be answered, though it is painful for me to notice such 
illiberal attacks. He says, that Willie acts as if he were engaged 
in the conspiracy. Cannot Willie have another excuse, in 
seeking exemption from the examination, than conscious guilt? 
The attorney for the United States 8ee» every object, connected 
with colonel Burr, through ^, jaundiced medium. With him 
'^ trifles light as air, are confirmation strong as proofs of holy 
writ." How far he might be disposed to involve this young 
man, upon a confession of having copied a letter in cypher, 
though of harmless import, I am not prepared to say. But let 
Willie only commit himself, so far as to make such confession, 
and then be called by his business to that poor unfortunate, 
enslaved country Louisiana, and it may be the pretext for op- 
pressing him most cruelly. He may be seized, thrown into a 
dungeon, or into the hold of a ship in the most rigorous season, 
and be heard of no more, unless he should have the better for- 
tune of being transported to Washington for trial. An un- 
fortunate ignorant man should be guarded from the penalty of 
suspicion. The danger to be apprehended from this source is 
not imaginary. We have not arrived at that part of our inquiry, 
which is awfully terrible, and apt to rouse the indignation of 
our couhtry ; we shall very soon give you an awful impression 



213 

of the miseries of that ill fated territory, under the total surren- 
der of the civil authority to military guidance. I am driven 
prematurely to glance at one outrage which may serve as a 
sample of the wretched state in which that section of our de- 
pendencies is. A citizen of the United States, now within the 
hearing of my voice, in a time of profound peace, was seized 
in New-Orleans, and, without being charged with any offence, 
but merely on suspicion that he could give evidence against co- 
lonel Burr in this court, to which he was willing to come, was 
committed to prison without bail or mainprize; thrown into a 
stinking room with the common felons and negroes confined 
there, and only taken out at last to be transported on board of 
a vessel to Richmond in custody. He was hurried like a male- 
factor on board, without being permitted to go to his lodgings 
to get a shirt to put on. He was forced to yield, in the humility 
of abject submission, to the arbitrary will of his oppressors. 
Are we content to bear such enormities? A man, only sus^ 
pected of being a witness^ is subjected to military slavery. Shall 
we furnish a pretext agsdnst this stranger, now called on to im- 
plicate himself, in what are called the treason and misdemea- 
nors of colonel Burr? It has been said, that my client and his 
counsel have taken much interest in this privilege. I feel inte- 
rested to protect the innocence of that young man from the 
vengeance of illegal power. My client feels the same anxiety. 
He is solicitous that he alone should feel the pressure of unjust 
suspicion and persecution. 

But how did this letter come her§? Foulness and violence 
are betrayed in the mode of its acquisition. In the hardest and 
most arbitrary times in England, papers which were seized by 
force, were brought forward as evidence against the party from 
whom they were taken ; but succeeding times have abhorred 
the doctrine ; and papers found in possession of a party have 
been deemed the weakest of all evidence. The foulness of that 
very mark of 25 cents deserves execration. 

Mr. Hat said, that there was no post mark. 

Mr. BoTTS. — The " 25'* on the back, is the only post-mark 
of many of the country post-offices. Mr. Hay did pot withhold 
it on that account. How came that mark there? Will the gen- 
tleman say how the paper was acquired? If the post-office was 
gobbed, tfie possession of the paper was gained feloniously. 
The constitution has provided against the seizure of papers; 
and the act of congress has fixed the offence of stealing from 
the post-offices. The means of obtaining the paper are uncon- 
stitutional. The end cannot be sanctioned, without maintaining 
the means. It is impossible that this most detestable vice, of 
the most infamous of European courts, can have been pa- 



214 

troQized hy tbe government. By a familtarity of eur rulem 
with such hateful practices the people would be demoralized. 
I claim from tbe counsel for die United States, as patriots, 
their akl to sanctieon my propositions, and join me in arraign- 
ing an act, which will disgrace all who had any agency in it. 
It must be a dreadful state of society, in which such an oiFence 
should be made the means of assisting to prove another. The 
principal of the government, if here, would join in the denun- 
ciation. If it behoove the government to suppress a paper thus 

, unconstitutionally, clandestinely, and illegally obtained, if they 

cannot use the end without sanctifying the means, I wish, for 
the honour of the government, that the paper may be suppressed. 

I I hope that in the dignity and generous spirit of Chatham, 

they will renounce it as unworthy of their use. It will do more 
mischief than the treason could, were it real* 

I come now to the abstract question of law. The question 

{>ut to Willie is. Do you understand that the original of this 
etter was written by colonel Burr i 

Mr. Mac Rae. — That is not the question last put. It is, 
Do you understand that part of the letter which is in cypher f 

Mr. BoTTs. — ^Very welL The gentlemen charge that this 
letter contains treasonaUe matter. 

Mr. Hay denied it. 

Mr. BoTTs. — Either the letter contains treasonable matter 
or it does not. If the latter, it is irrelevant and improper for 
discussion. If treasonable matter be contained in it, the ques- 
tion goes to criminate the witness. If he answer ** Yes,'' he is 
infamous. The rule is, that you shall not make the witness an- 
swer a question which may tend to implicate him in moral or 
legal turpitude. The witness himself is the judge, how far his 
answer may affect him. If he were obliged to answer, that the 
court may judge of its tendency, he would be surrendering his 
protection in the means of securing it. If the answer should 
tend to make a single link in the chain of testimony necessary 
to involve him in suspicion, he has a right to decline it. The 
link cannot be perceived by the judges to belong to the chain, 
without an exposure of every other part of it. Suppose another 
question were put to him, How do you understand it? He 
n\ust answer it, as he is to tell the whole truth. Half of the 
truth is not to be told. Gilberts Law of Evidence^ p. 134. 
9 State Trials J 434. Another authority from an able and im- 
partial court, which has been already referred to, shows, that 
although a question may be apparently innocent, yet a witness 
is not bound to answer it, if he think that it tends to criminate 
him. The question was, " What profession are you of?" The 



$ 



t 



215 

witness wa* a Roman Catholic priest^ am 1 tbe answer would 
have subjected him to penalties* The cour t did not know what 
the question would be, or how it would affect him, but the 
witness did know. His right to decline * the answer was sus- 
tained* What question could, on its face ;, be more harmless 
than that resisted by that witness? Un less the witness be 
made the sole judge of answering, the fa cnefit of the rule is 
lost to him. 

If, as I have already observed, the com *jents of the letter be. 
not of a treasonable nature, it is irrelevai u: we know not the 
contents of it Suppose the letter were wi itten by an amorous 
young fellow to his sweetheart, would it b e a proper subject of 
discussion in this case? 

I shall conclude with an admonition, o r an humble request, 
that gentlemen will give us a better opi portunity to prepare 
ourselves for the defence of our rights, by * possessing the cotrtt 
with any papers they intend to exhibit and letting us see 
them. It is a matter of right, that when a paper is offered for 
any purpose, it should be deposited with t jie clerk* Heretofore 
we have been prevented from getting a t light of any paper till 
the moment of discussion, and then obt ained it, not without 
difficulty* 

Mn Williams, counsel for Mr* Wi Die.— I lay down two 
propositions which I deem incontroverti ible: first, that a wit« 
ness is not bound to criminate himself: secondly, that a wit- 
ness is from necessity the best judge o f the tendency of his 
answers* 

To support the first proposition, I re fer the court to 1 Mac 
Nolly ^ 256, 7, 8*, Douglas^ 590*, Goost Jy's case, in this court, 
where, I understand, both points for wl lich I contend were es- 
tablished* If a witness admit that he k nows the contents, he 
is guilty of misprision of treason, and if it only tend to produce 
that result, he is not bound to answer* 

Second, The wimess is to be the ju( Ige how far he ought to 
answer. The reason of the rule supp orts this position. It is 
given for his benefit; it is a privilege for his protection* The 
other rule of examining witnesses oi i the ^ voir dire? before 
they are sworn in chief, is explanator j of this rule. A witness 
is asked whether he is interested in. t1 le event of the cause, be- 
fore he is admitted to give evidence relative to the matter in 
issue. If the opinion of the person of fered as a witness be, that 
he b interested, he is rejected as an \ incompetent witness* If 
his opinion be to exclude him in civil I cases, a fortiori^ ought it 
to exempt him from giving testimony ' in a criminal prosecution 
where his personal safety may be in danger? The witness only 
knows, what will' be the answer to ? the question. The court 



« 

r 



216 

cannot know it* It may discharge or criminate him. The wit^ 
ness must tell the c<iurt, what his answer will be, before they 
know it. A bystander who hears him, may be called on to 
fix guilt on him by his declaration* The interest of the United 
States cannot deprive him of his right* His saying that he can- 
not answer without criminating himself is on oath, and if he 
were to perjure himself upon that point, he would be equally 
ready to perjure himself on every other point. Whether public 
justice require an answer, is not the question; but whether the 
witness ought to be compelled to answer, when he believes it 
it would criminate or endanger him? To compel him would 
be a violation* of a great and valuable principle of law and 
justice* No case can be produced wherein it has been adjudged, 
that a witness is first to say what he does know, and that the 
court is then to judge of its tendency, whether it will en- 
danger him or not* A man is not bound to produce evidence 
against hiipself* 1 BU Rep* 37. ' % 

Mr. Martin.— The answer must be, " I do or I do not*" 
Mr* Willie has been considered a secretary of colonel Burr* 
If he confess that he knew the contents of this letter, and they 
should prove to be treasonable, his continuing in the service of 
colonel Burr, will make him a principal in the treason* He 
may have written to others; the post-offices have been put in 
requisition* 

Mr* Hay — Insinuaitions ought not to be thrown out against 
the government withotit evidence to support them. I am wil- 
ling to communicate all that I know about that letter. It was 
transmitted by general Wilkinson, through the hands of Mr. 
Minnikin, who accompanied Mr. Willie to this place, and it 
was attached to an affidavit obtained from judge Toulmin* I 
know not whether Willie ever saw it or not. 

Mr* Martin. — I do not charge general Wilkinson with 
plundering this letter, but we will hereafter prove, that they 
have laid violent hands upon the post-office of NewOrleans. 
They have a paper and know not how they have come by it. 
The post-office mark on it, is a presumptive proof of the vio» 
lation of the post-office. Never will I mince the matter* They 
would not get Willie to decypher this letter if he could ; but 
other witnesses may be UBed to decypher it, and it may then 
be evidence against him, if he acknowledge now that he un- 
derstands its contents* Do gendemen produce this letter to 
criminate doctor BoUman.? Let him decypher this letter* If 
other letters are hereafter found, in the same cypher, his ac- 
knowledgment, that he ca n decypher the one, will make him 
equally responsible for tho rest. By this contrivance, he and 



217 

doctor BoUmati msty be made the instrumentsof their own cri- 
mination : the one being used against the other. If a witness 
refuse to be sworn, he is liable to be committed for a contempt 
of the court. Salkeld^ 270. But there is no instance to be found 
where the court has committed a witness for a contempt, for 
refusing to answer a question, which he supposed woi^d crimi- 
nate himself. Mac Naiiy, 837. 2 State Trials^ 124. 

Mr. BoTTs. — It is important to know how the letter was ob- 
tained. I wish Minnikin to be examined. 

Chief Justice. — That is foreign to the present discussion. 

Mr. Mac Rae.— The question proposed to the witness is, 
*^Do you understand the contents of this letter?" But, before I 
proceed to demand the answer, I hope we may congratulate 
ourselves on the situation in which we are placed. The pro- 
ceedings clearly evince, that it is not our wish to withhold from 
the accused any, the slightest means /)f defending himself; 
and yet, the present is a spectacle very rarely exhibited in a 
court of justice. The counsel of the accused aiding the coun- 
sel of the witness to prevent him from being examined! I am 
glad, sir, that counsel is employed for the witnesses, if thereby 
the accused can be benejited, I am pleased that they have united 
in his defence. Bat I have endeavoured, in vain, to discover, 
whether any thing, which they have advanced, bears upon the 
point before the court. These gentlemen have widely wander- 
ed from it, and I feel deep regret, that they will not confine 
themselves to the point of law. Henceforth, I hope that they 
will do so, and abandon this species of warfare, and address the 
judgment of the court, instead of the prejudices of the multi- 
tude aroundi 

Great part of Mr. Botts's remarks are foreign to the point. 
Instead of reasoning on the subject, and referring to authors 
in support of his assertions, he has made some strange con- 
jectures, as to what may happen hereafter to Willie, even 
if the letter were innocent. That his acknowledging, that he 
bad copied it, though its contents be innocent, may expose 
him, at some future day, to persecution in some distant terri- 
tory; or, perhaps, doom him to be thrown into confinement in- 
to the hold of a vessel. Is not this mere declamation? can it be 
called argument? Does it bear at all upon the question? His re^ 
marks were certainly improper; and, perhaps, it maybe impro^ 
per to answer them. His observations about a distant territory 
are irrelevant, as are also all he has said about the manner of 
obtaining the letter. What connexion has this subject with 
JLouisiana or the manner of obtaining this letter? 

As to the robbing of the mail, it is all conjecture. Why has 

Vol. I. 2 E 



218 

■ 

he not specified the name of the post«o(fice, and the name of the: 
officer? A castom prevails in those post-offices to affix upon a 
letter the name of the office, printed or written* This impres- 
sion would have been sufficient to have led to the discovery: 
but there is none such on the back of that letter* The non- 
observance of the custom^ in this case, repels their insinuations* 
As to the figures "25," they occur very frequently on the face 
ot the letter. On the back of it, they may be a cyphered di- 
rection or caution to the person for whom it was intended: and 
this conjecture is as good as theirs. 

Mr. Botts says, that the letter must be fraught with treason, 
or it is not; and that if it be not, it is perfectly irrelevant to the 
present case. But ought not the fact to be ascertained ? Is it not 
material to the present inquiry that it should? But, says Mr. 
Botts, " if the letter be material, and Willie confess that he 
copied it, he will fix a crime on himself." That is not granted, 
sxr.^ Willie must also understand it. Even if it be treasonable, 
it was no offence to coj^y it, unless he understood its contents. 
He can neither be accused nor punished for it. All that could 
be said against him would be^ that be had ignorantly done an 
act, injurious to the public, with an intention to benefit an indi- 
vidual. 

The authority in Gilbert^ 134, cited by Mr. Botts, would ap- 
ply, if the question were about the credibility of a witness* 
But that is not the case, and the authority is inapplicable. 

They have also quoted a case from 9 State Trials^ where a 
popish priest was permitted to elude a question without an- 
swering it. According to the English laws, the witness, if he con- 
fessed that he was a roman catholic, was liable to certain dis- 
abilities. There it was known to the court, as well as to the 
witness, that there was such a law, and that by such a confes- 
sion he would subject himself to its operation. The court, there- 
fore, did not press him for an answer. But here, it is contended, 
that the witness is alone the Judge of the law and the fact; whe- 
ther he ought to answer or not: for both the law and fact are 
included in the privilege, which they claim for the witness. In 
the cases cited by them, the court did understand the subject^ 
and saw the danger of the witness: but here, the subject is not 
understood by the court; and the right of judging, whether the 
witness be in danger or not, is denied them. Mr. Martin cited 
authority in support of this principle : that courts had punished 
a witness for a contempt in not taking the oath, but never 
where he refused to answer in cases in which he might crimi- 
nate himself. A court has always a right to understand the ground 
on which a witness refuses to answer, and ever}'- man is liable 
to give testimony, unless he come within certain exceptions; 
and in those cases, he must show some law or authority to jus- 



219 

cify his refusal to answer* Does the court possess the power of 
compelling a man to make oath that he will give evidence, and 
yet not possess that of making him comply with it? Surely, 
this would be preposterous. 

In the case of die voir dire, it is not sufficient to ask a wit- 
ness, if he be not interested* If he say, that he is not interest- 
ed in the event of the cause, inquiries may be made into the 
ground of his opinion; and, if it can be proved, by other wit- 
nesses, that he is interested, he is excluded. It is never refer- 
red to the witness only* Every day's practice proves this to 
be the law. 

The court has a right to understand the grounds of the pri- 
vilege claimed by the witness. Suppose an attorney were called 
on to give testimony, and he should say, that his knowledge of 
facts had been derived from confidential communications from 
his client : he would not be the only judge in that case. The 
court would inquire, whether they were made to him in his pro- 
fessional or private character i The supreme court have so de- 
cided. Cranche^s Reports^ 137. and 1 Mac Nallif^ 255. sub- 
stantially support this doctrine. The priest, in the case referred 
to, was compelled to state the ground of his refusing to answer. 

The witness objects, that by answering, he may criminate 
himself; but the court is to judge of the tendency of the 
question. It must appear^ that he mcnf criminate himself. The 
question is, Do you understand that part of the letter that is in 
C)T>her? Whether he answer " yes," or " no," he cannot crimi- 
nate himself. If he say ^^ Yes," it cannot criminate him, unless 
it be coupled with other questions, and his answers to them; 
and unless, also, he wrote it He may know the key to the cy- 
pher very innocently. It may have been imparted to him for 
the purpose of parrying on an innocent correspondence. He may 
know the cypher without having any connexion with its con- 
tents ; or he may have acquired a knowledge of the cypher long 
after the letter was written. I wish gentlemen to show how 
he can criminate himself, by answering this question. They 
have not shown that it will^ or that it may^ criminate him : and 
if the answer will not crimina^te him, the United States are en- 
titled to his evidence. If he answer "No;" if he be unacquaint- 
ed with the cypher; he is innocent, and cannot be criminated* 

As to the law, there is no difference in opinion. We all agree 
in opinion, that a witness cannot be made to criminate himself. 
The only dispute is about the effect of the answer. I hope, 
therefore, that the court will compel him to answer the ques- 
tion, unless it be shown, that he will or may criminate himself, 
I am sorry that so much time has been consumed uponsoplain^ 
a question. 



Mr. Hat.*-I did not wish to say any thing on this frivolous 
question, when a subject so important ought to occupy our time* 
The effect of the paper is dreaded, for gentlemen discover un- 
exampled solicitude to keep it out of view. I know not its con- 
tents. They have repeatedly asserted, that Mr- Burr was per- 
secuted and innocent. If this be true, why do they shrink from 
the evidence. Integrity walks forth with a bold and erect front 
before the world. A man, who knows his own innocence, de- 
spises the powerless efforts of his enemies. They have consumed 
a great deal of time unnecessarily ; and yet, charge us with 
wasting it. I have taken up about the fortieth part of the time 
occupied by the gentleman who spoke first. 

I come now to the question. There are, in fact, two questions 
which we wish to put to the witness. 1st, Do you understand the 
cypher of that paper? 3d, Did the paper come from colonel Burr? 
was it written by him, or by his directions ? The last question 
ought to have been first stated. The witness does not say, why 
the answer to the question will have a tendency to criminate him. 
The court cannot judge, whether his motive may not be an un« 
willingness to give testimony against a person to whom he is at<- 
tached. He ought to answer : the court cannot decide without 
information from him, showing in what manner it may tend to 
his crimination. The meaning of the argument offered in de- 
fence of his silence, is, that he is connected with colonel Burr, 
and as deep in the treason as he is. Will his answering the ques* 
tion, " Whether he understand that cypher ?" subject^ him to a 
prosecution? It certainly will not. His knowledge of the cypher 
is not inconsistent with perfect innocence. They say, that the 
question ought to be. Has it a tendency to criminate him ? The 
wit of man cannot tell whether any tendency to criminate him can 
result from answering this question. The great rule of law, of 
which the cases cited are illustrations, i^ thiSy that a witness is not 
to give evidence to accuse himself of a crime, 1 Mac Nally^ 256* 
Hawk. 609. I venture to affirm, that the gentlemen cannot pro- 
duce a case, that goes as far as to say, that a witness is'^ot to an«- 
swer what may tend to criminate himself. But this answer will 
not even tend to criminate him, nor will it tend to calumniate him. 
The doctrine of Mr. Williams, about a pardoned man, does not 
apply. I contend, that a man is bound to answer every question re- 
hting to the point in issue^ unless it subject him to a prosecution. 
But as to collateral points, he is not bound merely to degrade or 
calumniate himself. Every case mentioned has been decided on 
these principles. 1 Mac ^aUyj 258: The authorities there show, 
that a witness must make answer, unless it directly criminate 
him; or, what is the same thing, subject him to punishment. The 
objection now made by the gentlemen was there expressly over- 
ruled. In the case of the King v. Edwards, the question put 



221 

was objected to, as iendinff to criminate himself. But the objec- 
tion was overruled by the court; saying, " there was no impropri- 
ety in the question ; as the answer toould not subject htm to any 
punishment.^ Thistherefore is a decisive authority iiH>ur favour, 
being precisely the same point* The doctrine, cited from the 
State Trials, was overruled by the cases in 1 Mac NaUy^ 259* I 
will not appeal to the candour, but to the ingenuity of gentlemen, 
to show how the answer to this question can criminate the wit- 
ness. The question is, " Do you know that cypher?" relating to 
the present time. If the letter contained guilt, and he knew it 
from the beginning, it might implicate him ; but we do not ask 
how long he has known it. 

The other question, which we propose, is not whether he co- 
pied or wrote the letter, but whether it were written by Burr or 
by his directions? This he can say, without saying who wrote 
it, if Mr. Burr did not. 

But it is sud, that *4he court is not to judge" whether he ought 
to answer, or whether it tend to criminate him or not. This is one 
of the wonderful positions in the wonderful cases resorted to by 
gendemen. Yesterday they said, that it was a clear case, and that 
Uiey only wanted time to look for authorities. And- what have they 
found? Nothing to support their position, though I have produced 
an authority, direcdy m point, against it. I ask, if this doctrine be 
not a prostration of the rules uniformly prevailing in all courts 
of justice? The court ought to judge every point of law arising 
collaterally or incidentally in a cause. The witness, from caprice 
or corrupt motives, may refuse to answer the question. Is it not 
strange that the court should politely say to a witness, ^^ You 
have been sworn to tell the whole truth, but you may be silent if 
you think proper^ without assigning any reason for it ? I expecu 
ed something like authorities to prove, that the witness had a dis- 
cretion to answer or not. Douglas 593, stating, that a man was 
not bound to answer whether he were a roman catholic or not, 
might as well have been introduced to prove any thmg else. 
The answer there, if in the affirmative, would subject immedi- 
ately to disabilities, but here it cannot. 

As to Goosely's case, I know nothing of it. Judge Griffin and 
Mr. WilUams differ in their statements concerning it ; but if that 
case be contrary to the uniform current of authorities, it is not 
binding. In Cooper's case the decision is contrary to law^ and 
has been disregarded since. 

The Chief Justice. — The decision in Cooper's case was only 
that the accused had not a right to obtain papers from the pub- 
lic offices for certain purposes. 

Mr. Hay.— -That decision, that papers shall not be obtained 
from the public offices, does not apply to the present case. 



222 

[HerelGoosely's case was produced, and part of it read from 
Che manuscript report of Mr* Daniel Call, (a gentleman well known 
as an able lawyer and correct reporter) and which case, in sub- 
stance, is as follows: Goosely was indicted for felony, under the 
16th and 17th sections of the act of congress establishing the 
post-office and post-roads within the United States, for robbing 
the mail of some bank notes. On his trial, ^^ the atton^ey for 
the United States called . Reynolds, an accomplice with the 

# person, against whom an indictment for the offence had been pre- 

ferred, but which had been found ^^ not a true bill" by the grand 
jury. Randolph and Wickham, counsel for the prisoner, objected 

$ to his testimony, on the principle, that the witness was not bound 

to give any evidence which might implicate himself. The attor- 
ney admitted the general principle, but denied its application, and 
insisted that he might give evidence. The court determined, 
<^ that he was a competent witness;*' but judge Iredel) observed, 
(and judge Griffin concurred) that ^' he could not be compelkdto 

* amtoer a question leading to an implication of himself: and ihat it 

was very probable, that the jury would pay but little attention to a 
fact, which they were satisfied was but partially related." He was 
asked, whether he knew of any bank notes being taken out of the 

^ mail by the prisoner? He answered, none, but what he was jointly 

concerned in. The court said he was not bound to tell any thing 
that might ^^ tend to criminate himself." The jury returned a 
verdict for the prisoner of not guilty, and he was discharged."] 

Gentlemen prove a thing which is not denied, and say that 
they have gained a victory. 4 State Trials^ 414, seems to counte- 
nance the doctrine on the otherside. In 1 MacNiaHy^^SB^ the court 
perhaps knew the situation of the man, and that it would crimi- 
nate him ; but it is here decided, that where the court knows not 
the situation of the witness, or whether his answer would sub- 
ject him to punishment, they will leave it to the witness. 

Mr. Williams says, that the answer itself must be given te 
enable the court to judge whether it will criminate him. But 
certainly the court may inquire into the circumstances, to disco- 
ver why he will be endangered. A man who says that he is in- 
terested, even if he be not, is disqualified; because he is under a 
bias if he think so, whether the fact be that he is or is not in- 
terested. In that case, it is an objection to the testimony of a 
« witness who is offered* This, on the contrary', is a question of 

exemption of privilege, claimed by the witness to excuse him 
from giving testimony; a duty incumbent on all, except interest- 
ed persons. In the case of Marbury v. Madison, it was de- 
cided, that ^^ a witness may state his objections j^ and the witness 
did state his objections and they were sustained ; but here the 
witness refuses to state his objections. He is silent, and refuses 
to explain* 



^ 



223 

Mr. Botts says, that the letter is irrelevant. To this I answeF, 
that this cao cmly be ascertained by discovering its meaning. The 
gendemeo declaim about plundering the post-offices. We deny 
it: let them prove it. I could talk of a detestable plot to plun- 
der a city and rob a bank.^ as subservient to the execution of pro- 
jects of unprincipled ambition; but, I will not do it till a future 
day. They scatter ambiguous words with a view to excite public 
suspicion and discontent. They insinuate, that this depredation 4 

has not only been committed, but that it was countenanced by 
general Wilkinson, and the president of the United States. But 
it ought to be proved before they allege it in a court of justice. ^ 

But suppose the letter had been in the post-office, and it had 
been voluntarily delivered by the postmaster, on discovering 
that it contained a treasonable j^ot, to the commander in chief, 
in order to prevent the treason; would this have been criminal or 
improper? It has always been the practice to intercept letters to 
prevent treason. It is founded on necessity, and dictated by the 
laws of self-preservation. As to Mr. Martin's position, that a 
witness may be committed for refusing to be sworn, but not for 
refusing to answer — 

Chief JusTiCE«^--Mr. Martin's position was, that a witness 
might be committed for refusing to be sworn; but not for refusing 
to answer, when he thinks the answer would criminate him. 

Mr. Hat.— -If that be the law, it does not justify the refusal 
of the wimess, in this case, to answer. The cases are not alike* 
No authority would be found, after their most industrious re- 
searches; because no case could be found similar to this case. I 
trust, therefore, that the witness will not be permitted to judge for 
himself; but that he must answer our question, as it cannot be 
shown that it wiU endanger him. 

Mr. Wirt.— -Very litde is left for me to say, after the able 
arguments of my respectable associates; but, if I cannot add to 
their arguments, I will try not to obscure the subject. We ought 
indeed to render thanks to the gentlemen for keeping us from 
gaping, by the multiplicity of their motions and interludes. 
They have made so many points as to form a perfect chevaux 
defrise in the stream of the prosecutiop, and to placQ an insur- 
mountable bar between the prisoner and justice. This is the true 
mode to get the prisoner off at all events; but not the way to get 
him off with honour. If they wish to remove the blot ia his es- 
cutcheon, they must submit to a candid examination of all the 
testimony; they must cease their constant efforts to stifle the 
evidence that operates against him. 

The gentlemen have assumed what is not proved, that Willie 
is an accomplice. But all their arguments and inferences founded 
•n this assumptioa must be unavailing. We do not, and will not. 



224 

admit that he is an accomplice till it be proved: but, if an ac- 
complice may be a vritatssjii fortiori a person who is not an ac- 
complice may certainly be a witness: and that ap accomplice 
may be , a witness, can be clearly shown by many respectable 
authorities. I refer the court to 1 Mac Nolly ^ 192, 193, 194. 
2. Hawk. 608. GUb, 122. Why should the law make an accom* 
plice a witness, unless the court had a power to interrogate him? 
This man cannot shelter himself from giving testimony, but by 
showing some legal privilege or exemption. 1 Mac Nailt/^ 247. 
253, 254, 255. All these authorities are strong and applicable; 
but the last is directly in point. It is there stated, as clear law, 
that the " claim of exemption from giving evidence is scrutinized 
with a jealous eye; and the person relying upon it, must esta- 
blish his right, by showing a positive law, or express autho- 
rity." There it was determined, that it was no cause of exemp- 
tion that the knowledge, which ^^ the witness had of the matter in 
issue, arose from a confidential communication made to him^ 
in the exercise of his clerical functions; and which the prin- 
ciples of his religion forbade him to disclose;" and that every 
tnan is bound to discover what he knows of the matter in 
^( issue unless he be specially exempted and protected by law." 
They, say, that the witness is exempted by a rule of law. I will 
examine what that rule is. It is laid down in Hawkins^ 609, 
book 2, chap* 46, sect, 20. that ** it is a general rule, that a 
witness shall not be asked any question, the answeriug of 
which might oblige him to accuse himself of a crime." This, 
sir, is a narrow rule, which they have blown up into an immense 
magnitude. If the answer of the witness include guilt, he is 
not bound to speak. Unless it oblige him to accuse himself of a 
crime, he must make answer to any question propounded to 
him; but what are the limits to the rule they contend for? What 
are the limits of ^' a tendency to criminatef*^ Any question may 
indirectly and remotely have a tendency to criminate or to pro- 
duce any other effect. The rule they insist on, is almighty and 
boundless; any witness may thereby screen himself from giv- 
ing evidence against a person to whom he is attached. Like 
the Cretan labyrinth, it can never be traced nor pursued; 
and if the witness once get into it, you never can extricate him 
from it. Does the witness know, that the answer he is to make 
to this question, has a tendency to subject him to legal prosecu- 
tion or punishment? I contend, that the precise question put, 
must contain the criminating naatter; and that therefore a ques- 
tion, to which an answer must criminate, must be put before the 
court can arrest the inquiry. If we put questions, to which an- 
swers may be made, without such an effect, the witness must 
answc/ them. This question requires no such answer. If we 
afterwards put a question to which the answer must subject to a 



225 

prosecution, it will be then time enough to arrest us. If the lettet 
be treasonable, and he' were to answer ^^ Yes*' to the question, 
whether he knows the C3rpher ; and if he knew it to be .treason- 
able from the first, he might be endangered; but many links are 
wanting to make a chain to bind Willie. Accomplices may be 
witnesses, but they say, they nrust not be compelled to give evi- 
dence that may tend to crimiiiate them. Tendency unlimited, 
brings the rule to nothing. But I will meet them plainly. If we 
ask the witness if he be guilty of treason, and he answer ^^ Yes,^' 
his confession cannot be used against him. The ^^ confession in 
open court," mentioned in the constitution of the United States^ 
applies to confessions on arrsdgnment, and to no other. It will 
puzzle the learning of Mr. Martin to show a case of a witness 
being exempted from answering questions applying to the point 
in issue. The exemption, in the cases they rely on, extends only 
to collateral points. Cases are frequent in the books, where 
witnesses are examined to points, to defame or convict them- 
selves, where they are questioned as to the issue. The cases in 
Mac Nalh/j are always of questions put, not touching the issue. 
In the trial of Readings 2 State Trials^ p. 802. 806. 822. the 
question was to a collateral point. It was so in the earl of Shaftes- 
bury^s case, in 3 State Trials^ 418; and so it is in all the cases. 
They are not permitted to wander out of the track to defame 
- witnesses. A confession by a witness, on oath, does not bind 
him, because it is not voluntary. 2 State Trials^ 123. ChristO" 
pher Lov^n case. Jackson's examination in that case» exactly 
resembles this of Willie. It proves, too, that he was committed 
not merely for refusing to swear, but also for refusing to tell the 
whole truth. If Mr. Martin say it was merely for refusing ta 
take, the form of the oath, what benefit would his taking the oath 
produce, if he were not to answer the questions put to him^ 
That was only the case of an accomplice about to be mterrogated 
as to the point in issue, and a difficulty was raised. This is a 
very simple point; and the only way to authenticate this letter is 
by the evidence of this witness, The prisoner is a great lawyer. 
Is it supposed he did not guard his footsteps ^ Would he call two 
witnesses to the letter? We want it not to go to the grand jury, 
until we prove it his offspring, by this witness, who would not 
tell one truth against him, if he could help it. They put their 
hands on his mouth to prevent him from telling any thing he 
knows; and he is so eager to secure the safety of colonel Burr, 
that he employs counsel himself, to prevent him from being 
obliged to reveal what he knows against him. I trust, therefore, 
that this witness will be compelled to answer our questions. 

Mr. Martin proposed to go on with the argument to-morro>v. 

Mr. Hat wished it to go on this evening; that the publig 
Vot. I. 2 F 



226 

ccmvenience required, that the evidence should be introdiiced at 
this time to the grand jury, 

Mr. Martin. — I will endeavour to answer first, the gentle- 
man who spoke last. He says that we have made more points 
than ever were made before; to which I answer, that no prose- 
cution was ever conducted like this. He says that we ought to 
court the fullest investigation. What! without the means of re- 
pelling their unjust attacks, and the misrepresentations of their 
witnesses. The privilege is not colonel Burr's, but that of the 
witness. As to accomplices being witnesses, they may be, and 
sometimes are so voluntarily, but never otherwise. As to the 
witness employing counsel, he is right to do it to protect himself* 
His own character and life may be endangered, and the counsel 
for the defendant are not wrong in assisting to protect the witness* 
A ^reat lawyer in the case of Callender did the same; and 
there is no impropriety in either case; both are proper, 

Mr. Wirt said that he would not follow the same track which 
we had travelled. He has indeed followed different principles. 
In all the cases which he has cited, the accomplice came forward 
voluntarily; but he could not have been compelled *to give testi- 
mony: there the objection went to the credibility not to the 
competency of the witnesses. The accomplice having confessed, 
cannot afterwards refuse to answer. He states, also, that an 
accomplice being a competent witness by law, cannot be privi- 
leged from giving testimony, without a special exemption. Now 
all acco^nplices are persons expressly excepted by the law, un- 
less they waive their privilege, and voluntarily come forwiard 
and swear. 

Mr. Wirt. — I deny that Mr. Martin stated my argument 
correctly. It is not a confession that makes an accomplice a 
witness. Confession does not prevent his being a wimess; but 
it is not necessary to make him one. This doctrine is that of 
approvers. 

Mr. Martin. — All the cases are, where the accomplice 
comes forward voluntarily. 

Mr. Wirt. — Porter's examination, in State Trials^ was a 
compulsory examination of an accomplice. 

Mr. Martin. — That case is not authority. It is an arbitrary 
doctrine. They have two strings to their bow, or rather two 
stools to sit on, the treason and misdemeanor ; that they may re- 
pose on the one, should the other fail them: but we trust that 
both will fail them. The case of compulsory examination applies 
to treason only. Lord Audley's was a case of rape, not of trea- 
son. I know not why Christopher Love's case was introduced, 
unless it were to show the coarse language used in those days 



227 

by prosecutors and judges. There is nothing else remarkable in it* 
A man refused to swear, and he was committed for it. That a wit- 
ness rmyhe committed for not swearing, but not for not answering 
questions, is said to be my argument, and very uncandid deduc« 
tions'are made from what is called my position. I never was so 
weak as to think or to say, that a witness was obliged to be sworn; 
and yet that he might withhold testimony, and be silent at his 
whim and pleasure. No, sir, my position was only, that a witness, 
having a legal reason for refusing to answer, wasnevei commit- 
ted; and so far is it from being dependent on his whijn^t that he 
must swear to the existence of this legal reason ; and as much 
reliance is to be put on his oath, on this point, as on any other. 

I ask the gendemen to produce any authority to show, that a 
witness can be compelled to answer, where he thinks it can cri- 
minate him; but no such authorit)' exists. As it was now late 
Mr. Martin said, that he could not finish his argument to-day, 
but hoped that the court would adjourn; and that he should.be 
permitted to add some observations to-morrow. 

The court then adjourned till to-morrow morning, at the 
usual hour. 

Wednesday, Jure 17th, 1807. 

Mr. Hay stated to the court, that many remarks had been 
made yesterday, respecting the letter addressed to Winburn (in 
cypher); that it had been insinuated, that it had been taken im- 
properly, if not feloniously from the post-oiEqe; that this was 
evidendy done to affect the character of general Wilkinson, who 
having been informed of it, wrote him the following note on 
the subject : 

Richmond, June irth, 1807. 
Sir, 
The letter addressed to Winburn, was delivered to me bv 
Charles Patton, of the house of " Meeker, Williamson & Patton,'* 
New-Orleans; and he informed me, was transmitted in the in- 
closed envelope. Respectfully I am, sir, your obedient servant, 

JAMES WILKINSON. 
George Hay, esquire. 

Mr. Martin requested to know, who opened the letter, or 
who first broke the seal ? 

The court said, that this was a question which was not now 
before it. « 

Mr. BoTTS said, that at a proper time, they would bring it* 
before the court, as a substantive and' iq[dependexit inquiry. 






228 

Mr. Martin said, that general Wilkinson 'was not a proper 
witness to remove suspicions from hrtnself* He then resumed 
the argument which he left unfinished yesterday. 

The great question is not, whether the witness ought to an- 
swer or not ? But whether he is not the sole judge, whether his 
answer to the question will criminate him or not ? I contend 
that he is, and if it were otherwise, the provision in his favour 
would be nugatory. He ought to answer no question, if it tend 
or lead to criminate him. 

The first gentleman who spoke for the prosecution, on this 
point, manifested candour. He advised us not to wander from the 
question. The advice was good; I wish they had fi^Uowed their 
own advice. If good advice had been followed, the post-ofiices 
would not have been violated. Was their advice given as a cau- 
tion by these kind indulgent friends ? Or was it to excite preju- 
dices against colonel Burr ? Many and strong attempts have 
been made to prevent a fair trial. The newspapers, and party 
writers, are employed to cry and write him dovm. His counsel are 
denounced for daring to defend him. The passions of the grand 
jury are endeavoured to be excited against him, and the very 
judges denounced if they do not decide against him, at all events ! 
The laws of the country, on .the contrary, presume every man inno- 
cent till he be convicted. How then can such proceedings be 
justified ? On the trial before the petit jury, I admit that they 
may declare as counsel that Burr is guilty; but at this stage of 
the proceed^gs, every observation should be avoided that may 
create or excite prejudices either on one side or the other. I 
hope that the zeal of gentlemen will be moderated, and that they 
will remember the benignity of the law, which declares, that it is 
better, that ten guilty men should escape unpunished than that 
one innocent man should be punished. 

Gentlemen say, that they are about establishing the relevancy 
of the paper. They do not know its contents, yet they take it for 
granted, that it is material, because we oppose it* Heretofore it 
has been the invariable practice to know^ in such cases, and to 
produce^ evidence both of the contents and the relevancy of Such 
exhibits. Suppose the letter were written in the French language, 
they must procure a translator before they could read it as tes- 
timony. Yet they cannot compel any body to translate it against 
his will. A person ought to be specially sworn as an intrepreter, 
to translate truly and faithfully. If they could not translate it 
themselves, they ought to have procured some person to do it, for 
the court is not bound to find a translator. 

The gentlemen say, that there is this distinction, that a wit- 
ness is not compelled to answer where the point to which he is 
questioned is not in issue, but that he must answer where it is in 
issue. No such distinction exists. ^^ No evidence ought to be 



3S» 

admitted to any point, but that on which the issue is joined.^' This 
IS manifest from Mac NaUy^ /r.'2, and is the first rule of evidence 
therein stated. The court is to judge whether the evidence be 
pertinent to the issue or not. 

Mr. Hat. — That is what we want. 

Mr. Martin. — I am not arguing about that; but demonstrat- 
ing, that no such distinction exists. I refer the court to Har' 
gravels Index to the State Trials. " A wimess is not compelled 
to answer where it tends to criminate him, nor where it does not 
relate to the issue." 

Mr. Hay and Mr. Wirt wished to see the pages referred to. 

Mr. Martin. — They are cases in the second State Trials^ 
and already commented upon. .1 cite this authority only to show 
Hargrave's opinion. He certainly is of opinion, that if a wit- 
ness imagines a- question has a tendency to criminate him, or 
subject him to a penalty, he is not bound to answer it. 

Mr. Martin then read Hoffmanns argument in the trial of 
Smith, to show the question put to Ogden, concerning the Le- 
ander's destination. He also quoted the question put to Mr. 
Ogden, relative to his first acquaintance with Miranda; when 
the court appeared to be of opinion, and admitted the principle, 
that Mr. Ogden was not bound to answer any question which 
might criminate himself^ but yet declared that he should answer 
these questions put to him, page 95, 96, 98.; and added, that 
Talmadge's opinion was of no consequence, but which was not 
admitted by the counsel on the other side. 

Mr. Hat. — It is irregular, to read the arguments of counsel 
as authority. 

Chief Justice. — It is regular to read them only as argu- 
ments. ' 

Mr. Hat requested Mr. Martin to read the arguments in the 
same case, on the part of the prosecution. 

Mr. Martin, after some conversation on this point, read the 
words of the prosecutor^ in the same case, and the argument of 
Colden, for the defendant, and a part of the arguments' of Mr. 
Edwards, one of the counsel in the same case. There, it was 
evident that the court was wrong. There was a question refused 
by Ogden to be answered. From the arguments and observa- 
(ions of counsel, I infer, that they waived their right to enforce 
die law against Ogden. They declined at that time calling oft 
the court to enforce its decision, in respect to Ogden's answer- 
ing, but said, that they did not waive the right to call upon him 
thereafter; but. they never exercised it. From which it may be 
reasonably inferred, that they had not the fullest confidence in 
the opinion of the court, but thought it erroneous or doubtftd. 



B 



230 

As to the case df the United States against Geoseljr, the 
counsel merely objected from memory; Mr. Wirt only read a 
part of it from Call's manuscript report of it, p. 140. But ^hy 
did not the gentleman read the whole of that 'case ? If he had 
read another part of it, it would have explained the law much 
more fully, and proved that a witness could not be compelled to 
answer a question, which might tend to implicate or criminate 
himself. [Here the case of the United States v. Goosely was 
fully read. Vide ante^ p. 222.] 

Here then is a decisive authority th^t my position is correct^ 
as far as the opinion of one very respectable judge (judge Ire- 
dell) goes. 

Mr. Martin then read from Mac Nally^ t. 258. the authority 
relied on by the other side, the case of the Kmg against Edwards^ 
accused of grand larceny. One of his bail was^ asked whether he 
had not stood in the pillory for perjury ? The question was ob- 
jected to as tending to criminate him, but over-ruled. He said, 
that both in England and Maryland, and in every state whose 
laws he had had occasion to investigate, the law exempted 
in penal cases a witness from criminating himself. This case, in 
Mac Nally ^25^. TLnA^Term Reports^ 440. is the only authority 
relied on as establishing the opinion, that a witness may be ex- 
amined as to matters that make him infamous. It means, where 
a witness has been convicted of an infamous crime, and has 
suffered the execution of the judgment, that he may be question- 
ed as to that fact. That was a case where bail was called on to 
justify as to the sufiBciency of his property, and the objecti9n was 
to his credibility, on account of his former infamy, where he had 
been punished, but could not be subjected to any further penalty. 
I doubt, however, this authority. The prosecutions for treason 
in England have been generally conducted with candour and 
gentleness. These authorities, (or rather this authority, as there 
is but one case) however they may be justified, are more rigid, 
than formerly. They are of modem invention. The mild maxim 
of the law is,N"n^7n^ tenetur seipsum accusare,^^ Even after a 
man is pairdoned for a crime, he is not bound to show his own 
former turpitude or infamy : 2 State Triais^ 822. An additional 
authority on this point is 1 Mac Nally^ 212. rule the sixth, where 
it is said, that ^^ whenever the competency of a witness is object- 
ed to, on the charge of conviction and judgment on an infamous 
crime, the party making the charge must produce in the court 
the record of the judgment, sub pede sigilli^'* which shows, that 
such evidence could not be extorted from the witness himself. 
There was no instance of such doctrine until the decision of the 
King V. Edwards, in 4 Term Reports. Until that decision, the 
rule of law was sacred, that a record was necessary to be pro- 
duced to prove perjury. The relaxation •f the law, with respect 



231 . 

to witnesses, is for the benefit of the party, because he does not 
know what witness will be brought against him* Peake^ 88. 
explains this to be the reason. That a witness may be asked, 
whether he had been convicted and punished \ 4 Term Reports^ 
440. was a decision in the year 1791, since the revolution. It 
may be no authority. We do not know, whether our courts of 
justice will adopt this law-rule or not. It has not been adopted 
in Maryland. It has no bearing on the question. The true ques- 
tion is, whether the court has a right to inquire into the cir- 
cumstances, or whether the witness is the sole judge, whether 
he ought to answer or not ? Let us revert to the authorities be- 
fore cited by us. Mac Nallyy 256. ^^ Hilsley, a roman catholic 
witness, being again asked by Titus Oates, by virtue of his 
oath, whether the house where he lodged, at St. Omers, was 
not governed by priests and Jesuits V^ That was apparendy an 
innocent question; but as it might be made a link m a chain of 
testimony, that would criminate him, the chief justice said it was 
not a question fit to be asked, and told the witness that he was 
not boimd by his oath to answer it. Mac Nally has put in, that 
he was a roman catholic priest, but nothing appears (in the re- 
port of the same case in State Trials) to the court, of his, being a 
priest. The court determined that they were not to go into the 
circumstances; because, thereby, facts, criminating the witness, 
would be disclosed, in order to show how an answer to the ques- 
tion would criminate him, so that by his answer, he would lose 
the privilege of the law. In the case of the voir dire^ if a wit- 
ness think himself interested, he is excused from being sworn. 
We admit, that in this case, the witness may be sworn; but in- 
sist that he is ilot to answer questions which he thinks may tend 
to criminate him. His being interested, ought to exempt him 
from giving evidence, as in the case of the voir dire* There is 
no difficulty in going into circumstances on the voir dire. Dis- 
closures can do no injury. But it is not so, if he think himself 
interested: he is excused, without any examination into circum- 
stances. This rule is laid down explicidy in Mac Nally ^ 140. that 
*^ if a witness think himself interested, although, in point of 
fact, he is not, he should not be examined as a witness." A 
fortioriy in a case where his honour, fame, and life are in quesdon, 
if a witness think that his answer will criminate him, he ought 
not to answer% Does it not apply with tenfold force ? It would 
drive men to perjury, if witnesses were compelled to answer in 
such circumstances ; and lord Mansfield has always laid it down 
as a great maxim, that men ought not to be e^^posed to temp- 
tation. 

But it is said, that if an attorney be called to give evidence, 
the court ought to decide whether he ought to be excused, and 
that he isi not judge for himself. By analogy, this is in our 



232 

favour. The privilege belongs not to the attorney, but to the 
client. The court in such cases, only asks him, whether his cli* 
ent made the communication to him as an attorney, or other- 
wise ? but the court goes no farther. So in this case they ought 
only to ask the witness, if he think his answer will criminate 
himf and it is impossible to obtain from him an explanation of 
the effect of his answer, without taking away from him the pro* 
tection of the law. 

If he gave it secretly to the judges, they might be compelled 
to reveal it, however confidentially communicated. The autho- 
rity in 1 Cranchy in the case of Marbury v. Madison, is said 
to be conclusive in their favour. I thank them for adducing it* 
It is strongly in our favour, because there, the witness was not 
compelled to give the evidence required. Gentlemen say, that 
they disapprove of part of the authority; and so I disapprove 
of so much of it as declares that the court did not think them- 
selves empowered to issue the mandamus to the secretary of 
state. They say, that in that case, the witness was bound to 
state, and did state his objection to answer. We admit it, and 
we stat^ our objection. The witness says, " It tends to crimi- 
nate me," and this objection is sufficient. 

But gentlemen say, that we have produced no authority in 
support of our argument. I insist diat the opinion of judge 
Iredell in Goosely's case, and the case referred to from 
9 State Trials^ are conclusive in our favour. The attorney for 
the United States has told us, that he expected a great deal 
would be said by us, but it would not produce conviction on 
his mind. We hope to convince the court, but we do not expect 
to produce conviction on the impenetrable mind of Mr. Hay, 
which is harder than Ajax's seven-fold shield of bulls' hides. 
I do not think it necessary to say more, than once more to ex- 
press our hopes of a favourable decision. 

Mr. WicKHAM. — ^I shall add a few remarks to what has been 
already said, and trust that the importance of the subject will 
be my excuse. I mean, that the principle is of very great im- 
portance; for as to the paper, it is of but little. 

They contend that colonel Burr is liable for the letters of 
persons connected with him, however remote the connexion, 
and whatever may be the contents of the letters. This principle 
is top general, and more dangerous than it is comprehensive. 
We do not admit it, either in its application, or in the extent 
insisted on. It may be construed in the most dangerous man- 
ner. Blannerhasset, stated to be connected with him, is said to 
be imprudent and of a singular turn of thinking. Is colonel 
Burr to be responsible for all his actual and verbal eccentrici- 
ties, merely because he was acquainted with him? I thought 



233 

before, that no man was liable for the acts of another, unless 
done by his authority or contrivance. Though we do not ad- 
mit principles contended for by the gentlemen on the other 
side, (which we sincerely believe to be unjust and unfound^ 
ed,) yet as it is not impossible but the court may decide against 
us, it is our duty to oppose them. This is a governing princi* 
pie which may run through the whole cause, and will apply to 
every other similar evidence. We deem it our indispensable 
duty to oppose the testimony now adduced, to affect colonel 
Burr with the acts of others. Was it fair to sound so much 
alarm and prejudice throughout the whole country, becaus^ we 
atated and availed ourselves of these legal objections? I am 
not well acquainted with that branch of the science which is 
called criminal law, and I hope to become less so; but I had 
always thought, that more protection was necessary, and af- 
forded by the law, tor the rights of individuals, in criminal than 
in other cases. If other prosecutors act like these, I am mis- 
taken. I never knew before, declarations made against any 
person for standing on the rules of law. I never knew before, 
that a citizen is to be reviled for adhering to the laws of his 
country. The court ought to stop gentlemen who make such 
an objection. 

But it is said, that *^ public prejudice is excited by his mode 
of defence!" If his claiming legal rights excite prejudice, we 
need not try him, but convict him at once without a trial. The 
witness ought not to be compelled to answer. The examina- 
tion of facts leads to the discovery which he seeks to avoid. 
He is on his oath. If he commit perjury in answering this in- 
terrogatory, he would do so in any other case. The questions 
asked a (roman catholic) witness, what business he had at 
St. Omers six years before, and what profession he was of, are 
innocent questions; yet in both instances, the witness was ex- 
cused from answering, because he thought it would crimi- 
nate him. 

They tell us, ^^ that this objection admits the guilt of colo- 
nel Burr." No, it only admits that he is under prosecution. 
Does it not endanger this young man of being arraigned, if he 
own connexion with colonel Burr. Is not an innocent man in 
danger of conviction by perjury? The whole strength of the 
government is exerted against the prisoner. The government 
would not suborn witnesses; but bad men might think to ren- 
der an acceptable service by swearing fiEdsely against a party 
under prosecution. The danger is real, though the party ac- 
cused is innocent 

As to Goosely's case, gendemen suppose me mistaken. 
Mr. Wm. Marshall's (the clerk of this court) recollection cor- 
responds with mine. Our remembrance is confirmed by Mr. 

Vol. I. . * 2 G 



X 



234 

Randolph, who was counsel in the cause, and by the judge< 
Reynolds was an accomplice, and was proved, by the finding 
of the grand jury on the record, to be an innocent man, and it 
was determined that he was not bound to give testimony 
against Goosely, because it might tend to criminate himself. 
The case is the same here. Willie, the secretary of, is con- 
nected with, Burr, They might send up to the grand jury 
a bill of indictment against him, if they did not think him 
too insignificant. The witness, like most other men, may 
estimate his own importance more highly than others might 
be disposed to do. A question, " where were you on such a 
day?" is an innocent one; yet, as it might tend to criminate him 
by being connected with other evidence, the court excused a 
witness from answering it. The question at present before the 
court is of the same nature, and his answer may be made, 
with the aid of other testimony, to criminate him. 

As to the authority from Mac Nally^ that a man is bound to 
answer the question, whether he had been punished for a crime 
or not? I shall observe, that a man^s answering, whether he 
had been punished, cannot injure his character, because the 
punishment iV public : if it were private, he would not be com- 
pelled to answer. Every man is indifferent until sworn. He 
ought to refuse to be sworn to any inquiry tending or leading to 
implicate him. The secret is locked up in his own breast : you 
cannot know that such a secret exists until he be examined, and 
you have no right to extort it from him to his own injury. I am 
sorry that so much time is consumed on so plain a question ; 
but as it is important, as it respects the progress of the inves* 
tigation, I hope we shall be excused. 

Here some conversation ensued between Mr. Wirt and Mr. 
Martin, respecting the legal authorities referred to by Mr. 
Wirt, and supposed to have been admitted by Mr. Martin. 

After some further desultory conversation, the chief justice 
asked whether there were any other question before the court? 

Mr. Mac Rae requested a decision on Dr. BoUman's case, 
as he wished to interrogate him about the cyphered letter. 

Mr. Williams was ready to discuss the question. 

Mr. Burr. — There will arise some very important ques- 
tions, affecting the very sources of the jurisprudence of this 
country. I have several affidavits to produce, to show that im- 
proper means have been used to procure witnesses, and thereby 
contaminate the public justice: -when these proofs have been 
duly exhibited, it will be the province of the court to decide, 
whether they will not arrest the progress of such improper con- 
duct, and prevent the introduction of such evidence. 



235 

Mr. BoTTs.-^I rise to apprise the opposite counsel, that . 
there are three or four questions of considerable importance, 
which we shall, bring forward as soon as possible* Two or three 
days ago, I commented upon the plunder of the post-offices; 
and I assure the counsel for the prosecution, that I shall probe 
that subject to the bottom; as no man can be more anxious 
than myself, that the stigma which this transaction attaches to 
the inferior or superior officers of the government, should be 
wiped off. As a private citizen, or as counsel for my client, I 
shall be sincerely pleased with a fit opportunity -of retracting 
the expressions which I have employed. The court will at once 
perceive the necessity of going into, this inquiry at a very early 
period; for if the officers of government have hitherto broken 
open letters from colonel Burr, they may hereafter resort to 
the very same expedient; and by thiis obstructing the very 
medium of communication between colonel Burr and his wit- 
nesses, prevent him from summoning them, and preparing for 
his defence* One more remark: yesterday I understood Mr* 
Hay to charge us with having made certain insinuations against 
persons not actually named. He demanded, why we had not 
forbom these charges, until we were prepared to support them ? 
That remark, sir, struck me with peculiar force. I was of the 
same opinion, that some proof ought to be produced; I imme- 
diately rose and professed my wishes to go into an investiga- 
tion of the case. But, sir, little did I expect that the gendeman 
would have proceeded to have justified these crimes. Little 
did I expect that such felonious transactions should have been 
blazoned into mighty virtues, or that it would have ever been 
maintained in this court, that the persons who had failed to 
plunder the post-offices, would have been guilty of a derelic- 
tion of their duty. The offer to go into the evidence operated 
as magic: he justified what he had before denied. I wish, sir, 
to explore the post-office laws to see whether they do not con- 
tain some provision, prohibiting the introduction of testimony, 
thus illegally obtained. 

Chief Justice. — Unless these allegations affected some 
testimony that was about to be delivered, how can you intro- 
duce this subject? 

Mr. Hay informed the court, that colonel Morgan was at 
that time before the grand jury, nnd they had sent for ii letter, 
from Aaron Burr to him. Should the letter (holding it in his 
hand) be sent to the gi-and jury? 

Mr. BoTTS requested to see it. Here, said he, is a small 
piece of newspaper attached to it, which ought not to accom- 
pany it before the grand jury. 



S36 

Mr. Burh. — 1 have noobjection that any of my letters should 
be sent up; but I trust, sir, it will be separated from this bit 
of a newspaper, and this comment which Mr. Morgan has at* 
tached to it. 

The letter was handed to the Chief Justice ; who observcdt 
that the only use of the newspaper Was to show, that at that 
time colonel Burr was at Pittsburg* 

Mr. Hay said, it was nothing more than to refresh his me- 
mory. 

The Chief Justice decided, that it was right to dissever it 
from the letter: the newspaper itself was no evidence; but if 
colonel Morgan would wish to refresh his memory, there could 
be no objection. They were accordingly separated -by the di- 
rections of the court, one was sent to the grand jury, and the 
other to colonel Morgan. 

Mr. Burr. — The court has very properly demanded some 
proof of the relevancy of our proposition. Sir, we are ready to 
prove the violation of the post-office. We are ready to fasten 
It on individuals now here, and we are ready to name the post* 
offices, if the court, require it, which have been thus plundered. 
When it comes out, that evidence has been thus improperly ob- 
tained, we shall say, sir, that it is contaminated by fraud. I wilt 
name three persons who have been guilty of improper conduct, 
in improperly obtaining letters from the post-office, to be evi- 
dence against me. These are Judge Toulmin, of the Missis- 
sippi Territory, John G. Jackson, a member of congress, and 
general Wilkinson. Two of these persons are within the reach 
of this court. As well as the improper manner in which they 
have procured affidavits and witnesses against me, I mention 
these circumstances for two reasons: First, that the facts may 
be proved to the satisfaction of the court ; and, second, that the 
court may lay their hands on testimony thus procured. 

Mr. BoTTs. — The circumstance of the post mark proves 
that the post-office was robbed of that letter ; therefore it is 
not evidence. 

The Chief Justice said, let the consequences be as they 
may, this court cannot take cognisance of any ^ct, which has 
not been committed within this district. That mark is not neces- 
sarily a post mark. The court can only know the fact, in a case 
to which it applies, except to commit and send for trial. 

Mr. Hay. — Let some specific motion be made, and the evi- 
dence procured ; and if there have been any crime committed, 
let the offenders be prosecuted according to law. These gen- 
tlemen know the course; and I most solemnly promise to dis:« 



237 

charge the duties of my office, whether they bear against geae- 
ral Wilkinson, or the man at the bar. If the crime have been 
committed, it is not the province of the court to notice it, till 
after an indictment has been found. 

Mr. BoTTS. — ^We only wish to prove, and prevent a repeti- 
tion and continuance of this improper mode of proceeding* The 
proof will affect general Wilkinson. 

Chief Justice. — If it did affect general Wilkinson, it could 
not prevent him from being a witness. 

Some desultory conversation here ensued, when Mr. Burr 
observed, that he was afraid he was not sufficiently imderstood, 
from mingling two distinct propositions together. As to the sub- 
ject of the post-offices, it might rest for die present; but as to 
the improper means employed in obtaining testimony, they 
were at this moment in actual operation. Some witnesses had 
been brought here by this practice ; stnd it was one which ought 
immediately to be checked: he did not particularly level his 
observations against general Wilkinson. He did not say, that 
the attorney for the United States ought to indict, or that such 
a crime if committed out of this district was cognisable by the 
court, unless it be going on while the court is in session, or the 
cause depending; in those cases improper practices, relative 
to crimes committed out of the limits of this court, may be 
examined, and the persons committing them attached. Such 
practices have been since I have been recognised here, and 
they ought to be punished by attachment. 

Mr. Wirt. — I do not yet understand the gendemen. What 
is the object of their motion ? 

Mr. BoTTs.^-We shall hereafter make it; we have no other 
object by the present annunciation, than to pve gentlemen a 
timely notice of our intentions. 

Mr. Burr. — ^We have sufficient evidence on which to found 
our motion. 

What motion? demanded Mr. Hat. 

Mr. BuRR.--^I thought, sir, I had sufficiendy explained my 
intentions. I may either move for a rule, to show cause #hy an 
attachment should not issue against judg^ Toulmin, John G. 
Jackson, and general Wilkinson, or what is sometimes, though 
not so frequendy practised, I may direcdy move for an attach- 
ment itself. 

Mr. Mag Rae. — At whose motion? 

Mr. Burr. — ^At the public's. 



238 

Mr. Mac Rae. — A pretty proceeding indeed! that thepubi* 
lie prosecution should thus be taken out of the hands of the 
public prosecutor, and that the accused should supersede the 
attorney for the United States! 

Mr, Burr. — A strange remark indeed! As if it were not the 
business of the injured person himself to institute the com- 
plaint* 

Mr. Hay. — I wish for farther explanation. Let the specific 
charge, on which their motion is founded, be clearly pointed 
out and reduced to writing. 

Mr. Burr. — The motion will be for an attachment, for the 
irregular examination of witnesses, practising on their fears, 
forcing them to come to this place, and transporting them from 
New-Orleans to Norfolk. 

At this moment Mr. Randolph entered the court, and ob- 
served, that if he had been present, he would have, himself, 
opened this motion; which was intended to operate imme- 
diately upon general Wilkinson, and ultimately upon some 
other persons. Mr. Randolph here read the motion which he 
would have submitted to the court. 

Mr. Hay protested against this proceeding; which was cal- 
culated to interrupt the course of the prosecution ; and was 
levelled at general Wilkinson alone. He asked, why these 
hints? Why these mysterious looks of awe and terror, with 
which gentlemen come into this court, as if they had some- 
thing to communicate which was too horrible to be told? Was 
Mr. Randolph (when attorney general, it is presumed he 
meant) ever interrupted in the midst of one prosecution, by in- 
troducing another? Do they wish to intercept general Wilkin- 
son from going to the grand jury ? Mr. Hay claimed from the 
court; a priority for the business of the United States. Let the 
present prosecution be concluded; and gentlemen may then 
proceed with their investigation into the conduct of general 
Wilkinson. 

Mr. Randolph. — ^The gentlemen, sir, will understand this 
subject much better to-morrow. I understood the motion was 
to be (>ostponed till to-morrow ; but as he asked for some inti- 
mation of our designs, I thought proper to accompany it with 
a few remarks. And, sir, if this affair be really so stupendous, 
as I conceive it to be, if it be true, [Mr. Bay exclaimed that 
it was not.] is it not entitled to the most serious inquiry? If 
this subject bear upon the present case, though it may influence 
the result of the trial, ought it to be suppressed? Your honour 
will direct me when to come out; and I assure your honour, 



239 

that it is not merely conjecture, but fact. I shall come forward 
with the affidavit of one of the witnessess to support our motion. 

Mr. Martin.— The gentleman is on his heroics. He will 
protest where? In the Argus, I suppose. He hopped uplike a 
parched pea, to make his protest agamst our motion. He insists 
t^at we shall postpone it till the trial is over, and the evil is 
done ! ! The court and grand jury may be engaged in twenty 
different prosecutions at the same time. We shall prepare our 
motion, and make it to-morrow. 

Mr. Hay. — I hope the court will decide not to hear it till this 
business is over. My protest will not have the tenth part of the 
eflFect of the attic wit of Mr. Martin. I have a great deal of feet- 
injr^ but it is not such as can be excited by the elegant comparisons 
ofthat gentleman. Comparisons are always odious. This is ex- 
pressive of contempt, and is viewedas it ought. Mr. Hay then ex- 
patiated at some length. He understood the object of this motion 
was to affect the credibility of general Wilkinson's testimony; 
and in what way? He presumed that the court wojuld not notice 
the pretended transactions which had been alluded to, in any 
other way, than as amounting to a contempt. As to any other 
offence against the laws of the United States, the true course 
would be, to proceed in the way of a presentment, or indictment 
in the regular way. Now, what are the principles of the law of 
contempt, in relation to this subject? General Wilkinson is said 
to have taken the depositions of certain persons in New-Orleans, 
an(d then to have brought these reluctant witnesses hither by 
military force. This is the only ground of the contempt against 
this court? But how can a contempt be committed? Either by 
directly insulting this court, or abusing its process, or interrupt- 
ing its justice. Will it be said, that general Wilkinson's conduct 
comes under either of those descriptions? 

Gentlemen have very often been pleased to put words into our 
mouths; and on one occasion, they have made us to say that ge- 
neral Wilkinson is the " pivot of the prosecution." And is it diis 
very pivot which they are now attempting to remove or pare 
down, by this precipitate application? It is my duty to vindicate 
him from this unjust charge, which is as immaterial as it is un- 
just. Are the communications between the court and the grand 
jury to be thus interrupted? Is their examination to be sus- 
pended, until general Wilkinson has been put upon his trial? If 
. these suspected transactions do amount to a contempt of this 
court, it is not my business, officially to notice itr Jt is of no 
consequence to them whether they prevail in their motion or 
not; their purpose is attained; their pompous declamation, that 
Wilkinson is a despot, and acted tj^rannically, is intended to 
excite prejudice against him. 



240 

Mr. Hat then said, that he should move to postpone the mo* 
tion of gentlemen, until the prosecution was over; for several 
reasons: because it would necessarily interrupt the business be- 
fore the court; because it was intended to impeach the credit of 
a witness; and because this inquiry could be as well conducted 
after as before the prosecution. 

Mr. Mac Rae.— -I will affirm, sir, in the presence of this 
court, and the surrounding people, that the charge now adduced 
against general Wilkinson, is completely unfounded. I affirm, 
that no witness has been brought forcibly by general Wilkinson 
from New-Orleans; one individual came reluctantly escorted; 
who, refusing to obey the summons of the government, was 
regularly brought before a magistrate, for his disobedience, and 
dealt with according to the due course of law ; and who is now 
in the custody of a person before this court. All the rest came 
as good citizens ought to have done; and the only fault which 
can possibly be attributed to them, if it be a fault, is, that they 
came in the United States vessel, in which general Wilkinson 
was authorised to come. 

Mr. WiCKHAM.— May I request the liberty, sir, of making a 
few remarks upon Mr. Hay's motion? Colonel Burr brought 
forward his motion in the amplest style possible. There was no 
imputation; there was no attempt to excite the public feelings. 
He merely stated his object in the most general terms; he ought 
to have been understood. The gentlemen, however, misunder- 
stood him. Tbey required a specification of our designs; we 
gave it to them in writing, and then we promised to bring for- 
ward our motion to-morrow. They still insisted upon a more 
particular explanation of our points; and Mr. Randolph rose and 
spoke to gratify them. Nothing, however, seems to please those 
gentlemen. They not only found fault with the motion, but the 
looks of Mr. Randolph* He will scarcely, however, change his 
tsLCt to please them. It is precisely such as God Almighty gave 
him. 

Mr. Hay, sir, has got into parliamentary habits; and talks 
very fluently of the previous motion. These things are novel 
to me, who am a mere lawyer. On this motion, I will make but 
one remark. The constitution has divided the powers of the go- 
vernment among these great departments; the legislative, execu- 
tive, and judiciary. These must be kept separate and distinct, 
not only in their duties, but in their practice. The legislature act 
upon expedtency^ the judiciary act upon righu The gentleman, 
however, seems to think himself suddenly transported to the le- 
gislative hall; and no doubt, would soon think it very convenient 
to hang colonel Burr. He tramples all our judiciary forms under 
foot; if we make a motion before the court, he soon trips up the 



241 

lieeh of ours with his previous motion; but he has no ririit ta <fe 
so. And where is his doctrine to end? We certamly hare dw 
same rights which they have; and as they have moved the pre* 
vious question, we move, sir, that the court shall not hear their 
motion. This will be ringing the changes without end: it is a new 
invention. It is better tlutt we send these parliamentary distinc- 
lions to the other side of the house, where they ought for ever to 
remain. 

Mr* Hay says, that this motion ought not to be made pendente 
lite^ 9nd that he ought to be tried like other people. Sir, colonel 
Burr ought to have the same justice meted out to him, which i$ 
meted to every other person. He stands here on the same foot« 
ihg, and with tne same privileges, as any other citizen in his situa* 
tion. I assert, that any other man would have a right to this 
attachment; and that the motion ought to be made pendente lite^ 
if at all. ^^ Why, (they loudly ask us) does he make it at this 
time?" *^ Why does he not postpone it till after the prosecution?" 
Why, sir, when colonel Burr is discharged, (and I hope he will 
shonly be so) he may not be disposed to trouble the court any 
further. How long this prosecution will last, no one knows: per- 
haps a week; perhaps longer. It is already gone so far beyond 
our expectations, that it is impossible to conjecture. Now, sir, 
may not similar contempts occur? Is it not necessary to restrain 
certain people, by convincing them, that such practices make 
them liai)le to punishment? But they say, that these charges are 
no foundation for a motion. Our object is not to inflame the 
public mind: facts will sufRce. And what has general Wilkinson 
done? He has brought witnesses widi him from New-Orleans, 
by military force. He has taken their depositions entirely ex parte 
at the point of the bayonet; yet there is no horror in all this, 
for the purpose of keeping their testimony straight! I lay down 
this broad position: that the man, who goes about collecting 
affidavits upon affidavits, corrupts the fountains of justice. We 
have already seen a volume of such at this bar. [Mr. Hay. Did 
they come from New-Orleans?] I did not say irom New-Or- 
leans. I might have particularly mentioned Mr. Jackson, who 
comes here with the depositiotis of witnesses, who are thus bound 
hand and foot, thus tongue-tyed, because their depositions had 
been taken. Sir, I saw tifiem in this very court examining wit- 
nesses with affidavits in their hands, and comparing the one 
widi the other: depositions taken not by commission, but ex parte* 
When an interested agent thus goes about collecting depositions, 
and with ignorant men, shaping them just as he pleases; I aver, 
that they are contrary to law, and to the spirit and genius of our 
government; that they are a contempt upon this court, if done 
during the prosecution, by interfering with the purposes of jus- 
tice. Such men are liable to an auachment, from the very mo- 

VoL. I. 2 H 



242 

meat when the government toek possession of colonel Burros 
person; not from the moment of his first arrest, but from the 
time when they ordered Perkins to conduct his prisoner from 
Fredericksburg to Richmond* 

The gendeman has enumerated three species of contempt: 
but the enumeration is certainly imperfect. Does the gendeman 
khow nothing of prosecutions for libels on the court or on the 
parties? The publication of a handbill against a party is aeon- 
tempt of the court, because the administration of justice is af- 
fected by it. All acts to defeat justice, or to influence the public 
mind pendente Vtte^ are, for the same reason, contempts of the 
court* Such contempts have been punished in Europe and in 
this country. I repeat it, that whoever does any act to influence 
the administration of justice is liable to an attachment* But 
they say, our object is to aflect general Wilkinson. He is a 
competent witness, however arbitrary he may be. His credibi- 
lity will be judged of from alLthe circumstances. Does general 
Wilkinson shrink from the investigation? 

Mr. Hat. — You know he does not. 

Mr. WicKHAM. — The attorney for the United States charges 
us with interrupting the prosecution. Our motion is founded on 
right, and we will prove its truth. He need not attend to it. If 
the court have not the right to grant our motion, we shall la- 
ment it. We hope the courj( will hear our motion to-morrow. 

The Chief Justice said, that the pendency of the prose- 
cution was no objection t6 hear the motion: but it was another 
question, whether there were any grounds for it or not ; and that 
the court would not say, that a motion, relating to the justice oF 
the case, ought not to be heard. 

Mr. Hay wished it postponed to a later day; and insisted, 
that admitting the charges were true, they could have no legal 
effect on the prosecution* He said, he would repeat his motipn 
to postpone the inquiry. 

Mr. Martin and Mr. Botts denied it; and after some de- 
sultory conversation, the court adjourned till to-morrow. 

Thursday, June 18th, 1807. 

As soon as the court met, the Chief Justice delivered the 
following opinion, in the case of Willie: 

In point of law, the question now before the court relates to 
the witness himself. The attorney for the United States offers 
a paper in cypKer, which he supposes to have proceeded from 
a person, against whom he has preferred an indictment for high 
treason, and another for a misdemeanor, both of which are now 
before the grand jury ; and produces a person, said to be the se- 



243 

cretary or clerk of the accused, who is supposed either to hive 
copied this paper by his directions, or to be able to prove, in some 
otner manner, that it has proceeded from his authority. To a 
question, demanding whedier he understands this paper, the 
witness has declined giving an answer, saying, that the answer 
might criminate himself; and it is referred to the court to decide, 
whether the excuse he has offered be sufficient to prevent his an- 
swering the question which has been propounded to him. 

It is a settled maxim of law, that no man is bound to crimi- 
nate himself. This maxim forms one exception to the general 
rule, which declares, tliat every person is compellable to bear tes- 
timony in a court of justice. For the witness, who considers 
himself as being within this exception, it is alleged, that he is, 
and from the nature of things must be, the sole judge of the 
effect of his answer: That he is consequently at liberty to refuse 
to answer any question, if he will say upon his oath, that his an- 
swer to that question might criminate himself. 

When this opinion was first suggested, the court conceived 
the principle laid down at the bar to be too broad, and there- 
fore required, that authorities in support of it might be. addu- 
ced. Authorities have been adduced, and have been consider- 
ed. In all of them, the court could perceive, that an answer to 
the question propounded might criminate the; witness, and he 
was informed, that he was at liberty to refuse an answer. These 
cases do not appear to the court to support the principle laid 
down by the counsel for the witness, in the full latitude in which 
they have stated it. There is no distinction, which takes from 
the court the right to consider and decide, whether any direct 
answer to the particular question propounded, could be reason- 
ably supposed to affect -the witness. There may be questions, 
no direct answer to which, could, in any degree, affect him; and 
there is no case which goes so far as to say, that he is not bound 
to^nswer such questions. The case of Goosely in this court is, 
perhaps, the strongest that has been adduced. But the general 
doctrine of the judge in that case, must have referred to the 
circumstances, whidi showed, that the answer might criminate 
him. 

When two principles come in conflict with each other, the . 
court must give them both a reasonable construction, so as to ^ 
preserve them both to a reasonable extent. The principle which 
entitles the United States to the testimony of every citizen, 
and the principle by which every witness is privileged not to ac- 
cuse himself, can neither of them be entirely disregarded. They 
are believed both to be preserved to a reasonable extent, and 
according to the true intention of the rule and of the exception 
to that rule, by observing that course which, it is conceived, 
courts have generally observed. It is this: 






244 

When a question is propounded^ it belongs to the court to 
consider and to decide, whether any direct answer to it can im- 
plicate the witness. If this be decided in the negative^ then he 
may answer it without violating the privilege which is secured 
to him by law. If a direct answer to it may criminate himaelf, 
then he must be the so)e judge what hia answer would be* 
The court cannot participate with him in this judgment, be- 
cause they cannot decide on the effect of his answer without* 
knowing what it would be; and a disclosure of that fact to the 
judges would strip him of the privilege which the law allows, 
and which he claims. It follows necessarily then, from this state- 
ment of things, that if the question be of such a description, 
that an answer to it may or may not criminate the witness, ac- 
cording to the purport of that answer, it must rest with himself, 
who alone can tell what it would be, to answer the question or 
not. If, in such a case, he say, upon his oath, that his answer 
would criminate himself, the court can demand no other testi* 
mony of the fact. If the declaration be untrue, it is in conscience 
and in law as much a perjury as if he had declared any other 
untruth upon his oath; as it is one of those cases in which the 
rule of law must be abandoned, or the oath of the witness be 
received. 

The counsel for the United States have also laid down this 
rule according to their undentanding of it; but they appear to 
the court to have made it as much too narrow as the counsel 
for the witness have made it too broad* According to their 
statement, a witness can never refuse to answer any question, 
unless that answer, unconnected with other testimony, would be 
sufficient to convict him of a crime. This would be rendering 
the rule almost perfectly worthless. Many links frequently com- 
pose that chain of testimony, which is necessary to convict any 
individual of a crime. It appears to the court to be the true 
sense of the rule, that no witness is compellable to furnish ^y 
one of them against himself. It is certainly not only a possible but 
a probaUe case, that a witness, by disclosing a single fact, may 
complete the testimony against himself; and to every eflFectual 
purpose accuse himself as entirely as he would by stating every 
circumstance which would be required for his conviction* That 
fact of itself might be unavailing; but, all other facts without it 
would be insufficient. While that remains concealed within his 
OMm bosom, he is safe ; but draw it from thence, and he is ex- 
posed to a prosecution. The rule which declares, that no man 
is compellable to accuse himself, would most obviously be in- 
fringed, by compelling a witness to dbclose a fact of this de* 
scription. 

What testimony may be possessed, or is attainable, against 
any individual, the court can never know. It would seem then, 
that the court ought never to compel a witness to give an an- 



5245 

swer, which ditcloses a fact that would form a necessary and 
essential part of a crime, which is punishable by the laws. 

To appty this reasoning to the particular case under conri« 
deration : To know and conceal the treason of another is mis- 

S»rtsion of treason, and is punishable bylaw* No witness, there- 
ore, is compellable by law, to disclose a fact which would form 
a necessary and essential part of this crime. If the letter in 
question contain evidence of treason, which is a fact not de- 
pendent on the testimony of the witness before the court, and, 
therefore, may be proved without the aid of his testimony; and 
if the witness were acquainted with that treason when the letter 
was written, he may probably be guilty of misprision of treason; 
and, therefore, the court ought not to compel him to answer 
any questipn, the answer to which might disclose his former 
knowledge of the contents of that letter. 

But if the letter should relate to the misdemeanor and not 
to the treason, the court is not apprised that a knowledge and 
concealment of the misdemeanor would expose the witness to 
any prosecution whatever. On this account^ the court was, at 
first, disposed to inquire, whether the letter could be decypher- 
ed ; in order to determine from its contents, how far the witness 
could be examined respecting it The court was inclined to this 
course from considering the question as one, which might re- 
quire a disclosure of the knowledge, which the witness might 
have had of the contents of this letter when it was put in cypher, 
or when it was copied by himself; if, indeed, such were the fact. 
But, on hearing the question more particularly and precisely 
stated, and finding that it refers only to the present knowledge 
of the cypher, it appears to the court, that the question may be 
answered without implicating the witness; because, his present 
knowledge would not, it is believed, in a criminal prosecution, 
justify the inference, that his knowledge was acquired previous 
to this trial, or afford the means of proving that fact. 

The court is^ therefore, of opinion, that the witness may an- 
swer the question now propounded. 

The gendemen of the bar will understand the rule laid down 
by the court to be this : 

It is the province of the court to judge, whether any direct 
answer to the question, which may be proposed, will furnish 
evidence against the witness. 

If such answer may disclose a fact, which forms a necessary 
and essential link in the chain of testimony, which would be 
sufficient to convict him of any crime, he is not bound to an- 
swer it so as to furnish matter for that conviction. 

In such a case, the witness must himself judge, what his an- 
swer will be ; and if he say, on oath, that he cannot answer with- 
out accusing himself, he cannot be compelled to answer. 



i 



246 

Mr. Williams (counsel for Mr. Willie) stated, that he had 
misunderstood him the other day in court, and in a subsequent 
conversation had obtained more accurate information. He does 
understand a part of that letter. 

Mr. Hat requested, that Mr. Willie should be called into 
court. 

When he appeared, Mr. Hay interrogated him. Do you un- 
derstand the contents of that letter ? Answer, No. Mr. Willie 
afterwards said, that he understood the part of the letter which is 
written in Dutch. 

Mn HAT.-'^Was thfs letter written by the hand or the direc- 
tion of Aaron Burr ? 

Mr. WiCKHAM objected to the question. 

Chief Justice.— The witness and his counsel will consult. 

Mr. Hat repeated the question. Mr. Willie. Yes. Mr. Hay. 
Which? By his hand, or his direction i Mr. Willie. By his di- 
rection. It was copied from a paper written by himself. 

Mr. Hat. — I wish this paper to be carried to the grand jury. 
I presume there can be no objection. , 

Mr. BoTTs. — No objection! We call upon you to show the 
materiality of that letter. 

Mr. Hat.—- I deny the necessity of any such thing. Until 
this letter be decyphered, it will be perfecdy unintelligible to me, 
and to the grand jury. It is no more than a blank piece of paper. 

Mr. WiCKHAM. — I had always understood before, that the 
testimony, which is laid before a grand jury, must not only be 
legal in itself, but proved to be materiaL 

Mr. Williams begged leave to interrupt the gentleman. Mr. 
Willie is anxious to be particularly understood. He says, that this 
cyphered letter was first written by colonel Burr, and afterwards 
copied. But it is the cypher only, which has been copied from 
colonel Burr's original. 

Mr. Hat. — It is quite sufficient, sir. If colonel Burr wrote 
the cyphered part, he will be considered the author of the 
whole. 

Mr. WiCKHAM. — The gentleman has started a curious pro* 
position indeed! I had always understood before, that the whole 
included the part; but it seems now, that the part is to compre- 
hend the whole. 

Mr. Hat. — The remark of the gentleman may be wit, sir, but 
he certainly knows, that it is not law. • 

Chief Justice. — Can you get this letter decyphered ? 



247 

Mr. Hat.-'-Is Ericlc BoDman in court? I wish him to be 
called. These gentlemen demand proof of the materiality of this 
letter. Is this a question about which the court will interfere i 
Can the court think it proper to require the materiality of this 
cyphered letter to be proved^ before it is sent up to tne grand 
jury ? We may turn the very favourite argument of gentlemen 
against themselves. This letter is either material to the present 
case, or it is not. If it be material, how can they object to its 
production i And }f it be perfectly immaterial, what injurious 
consequences can result from its being sent up to the grand 
jury? 

Mr. BoTT8.-^I never supposed that it could be a question^ 
whether an immaterial paper could be exhibited before the grand 
jury i This question has been frequently decided in the nega- 
tive. On the trial of Smith and Ogden, judge Patterson solemn^ 
ly decided against such a proceeding. Were papers permitted to 
be laid before a grand or a petit jury, before their materiality 
was proved, it would produce an endless confusion, and waste 
of time. In Washington's Reports there is a case, where the court 
of appeals inferred error, because an inferior court had permitted 
the introduction of an immaterial paper; and this too, was in a 
civil case. Even if the grand jury have called for it, it ought not 
to be sent to them, before its materiality has been shown to the 
satisfaction of the court. 

Mr. Mag Rae. — Would it not be as proper, sir, to compel 
every witness, before he is sent up to the grand juiy, to state 
the substance of his testimony, as it is to require proof of the 
materiality of a paper i This inquiry, however, is never made. 
The only qualification which is required about a witness is, that 
he should be a legal competent witness; not that he should be 
sworn to be a material one. The very same principle is applica- 
ble to this paper. After it is proved to be relevant testimony, is 
it necessary that an inquiry should be made into its materiality? 
In fact, how can any such proof be given, when the letter itself 
b principally in cyphers? 

Mr. WicKHAM. — ^Mr. Mac Rae has demanded authorities; 
I have prepared none at present, sir, because I could not sup- 
pose that any were necessar}'. As to his argument, that no in- 
quiry is to be made into the materiality of a paper to be sent to 
the grand jur}% because none is made into that of a witness, it 
docs not apply. When a witness is sent up before a grand jury, 
it is presumed that his testimony is relevant to the case. The 
only question is, is he a competent witness? And it b only on the 
ground of incompetency, that his testimony is not legal. If com- 
petent, he is a legal witness; he is sworn, and is forced to an- 
swer such questions as maybe put to him by the grand jury. If, 



248 

hoMrev«r, lie refifte, they tlien call upon the court to interpose 
its jurisdiction; and the inquiry will then be, whether the ques- 
tion be material and proper? As'to papers, they are not to be re- 
ceived at all, unless they are shown to be relevant to the cade. 
And where is the limit to this species of proceeding? Suppose, 
in this search after papers, all the private letters of cplonel Burr 
should be brought up; all die most secret actions of his life 
should be written down, and brought hither to be submitted to 
public inspection ; will the court indulge them in such a wide 
inquisition ? 

Chief Justice said, he had in some measure anticipated this 
question, and had reflected upon it; his opinion was this : a paper, 
to go before the grand or petit jury, must be relevant to the case, 
even if its materiality were proved. Why send this letter before 
the grand jury, if it cannot be decyphered ? If it can be decy- 
phered before the grand jury, why not before the court ? Let it 
then be decyphered, and its relevancy may at once be established. 

Mr. Hat.-^I8 there no difference between any other paper 
and a cyphered letter proved to have been originaUy written by 
Aaron Burr I 

Chiet JusTiCE.^-StiU this letter may not be relevant to the 
present case. 

Mr. Hat then directed Erick BoIIman to be called into court, 
that he might be interrogated as to its contents. He requested 
that the court would indulge him for a short time, until he could 
execute some important business before the court of appeals. 

The court accordingly suspended the prosecution. 

At half after one o'clock, the court again resumed the busi- 
ness; but neither doctor Bollman,nor Mr. Hay appeared. 

A few minutes after the court had resumed its business, Mr. 
John Randolph entered at the head of the grand jury, and ad- 
dressed the court: 

May it please the court: One of the witnesses, under exami- 
nation before the grand jury, has answered certain questions 
touching a letter in cyphers. The grand jury understand that this 
letter is in the possession of the court or of the counsel for the 
prosecution. They have thought proper, to appear before you, 
to know whether the letter, referred to by the witness, be in the 
possession of the court i 

Chief Justice observed, that as the letter was wanted by 
the grand jury, a witness having referred to it, that was suffi- 
cient to establish its relevancy, and directed it to bo delivered 
to them. 



249 

Mr. Mac Rae hoped, that before the grand jury retired they 
would be informed, that a witness had proved that this letter 
was originally written by Aaron Burr. 

Mr. WiCKHAM.— And I hope, they wiO also be informed, 
that the superscription on that letter has not been proved to have 
been written by colonel Burr. The witness did not, and would 
not, say that he knew the superscription to have been written by 
him. 

The grand jury then retired, and the court adjourned till td- 
tnorrow, eleven o clock. 

Friday, June 19th, 180y. 

As soon as the court met, Mr. Burr addressed them. He 
stated, that the express, that he had sent on to Washington with 
the subpoena duces tecum^ had returned to this city on Wednes- 
day last, but had received no other than a verbal reply from the 
president of the United States, that the papers wanted, would 
not be sent by htm; from which I have interred, said Mr. Burr, 
that he intends to send them in some other way. I did not men- 
tion this circumstance yesterday to the court, under an expecta- 
tion that the last night*s mail might give us further intelligence 
on the subject. I now rise to give notice that, unless I Veceive a 
satisfectory intimation on this subject before the meeting of the 
court, I shall, to-morrow, move the court to enforce its process. 

Chief Justice handed down to the bar a copy of a letter 
addressed from doctor Erick Bollman to the chief justice. It 
was not publicly read, and for that reason Mr. Hay declared 
that he should not make any remarks upon it. 

Mr. Burr's counsel called James Knox and Chandler Lindsley, 
(two of the witnesses of the United States) whose aflBdavits 
had been drawn and were intended as the ground of the motion 
for an attachment against general Wilkinson. 

Mr. Hay interrupted the motion, by stating, that he himself 
had a motion to make to the court; and that was, for leave to 
aend up such v^itten interrogatories to the grand jury as he 
thought proper to put to certain witnesses. His reason was, 
that some of these witnesses would voluntarily depose to as lit- 
tle as possible; that the grand jury might not always know the 
particular questions to be proposed to them respectively, and to 
what point to shape their inquiries; that he himself better knew 
what they would say, (having seen their depositions); and that 
his interrogatories might probably aid the jury in their invest!- 
(auon. 

Mr. Martin.— I shall object to this motion, unless it be qua- 
lified by giving'us the same privilege. We cannot send up^oHr 
Vol. I. 3 1 



250 

witnesses to the juiy, bat we may send up ont mt^rrogatories* 
We will Assent to the motion of the attorney for the United 
States upon the condition that he will assent to ours* 

Some conversation ensued upon the motion for an attachment; 
when the Chief Justice asked, if die papers could not be pot 
into his hands, and the argument take pl^ce to-morrow; that he 
wished to consider the question before it was cUscuased. 

Mr. Hay approved of this course. It would prevent the public 
exhibition of these affidavits, which were drawn up for the sole 
purpose of defaming general Wilkinson, and thereby making an 
improper impression on the public mind with respect to the trial 
of Aaron Burr; and had been obtained from persons who were 
willing to say any thing to answer the purposes of tlie aocused^ 
but very reluctant to give any evidence on behalf of the United 
States. That these were voluntaiy affidavits of these reluctant wit- 
nesses, whose connexion with the accused would one day be 
known* If the place where^ and persons by whom they were dic- 
tated, were considered, the court would see that the object was to 
prejudice the surrounding multitude against general Wilkinson; 
that they had such deadly hatred against him, that If they could 
but sink him^ they were regardless of sinking themselves; but, 
that the integrity and patriotism of that man would soon be 
known to all America ; that he had merely glancied his eye at ft 
single expression in one of these papers, which was as impudent 
a falsehood as ever malignity had uttered. The court might 
compare these papers with the law, and determine whether they 
would justify an attachment or a rule to show cause, and that the 
court, if they entertained any doubts, might then direct an argu- 
ment; but then he hoped that the witnesses would be examined 
in court. 

■ 

Mr. Randolph spoke at considerable length. He ha<l been 
disposed to postpone this subject till to-morrow ; but, from the 
moment when he heard Mr. Hay's anticipating speech he was 
oppostd to all delay. He had produced documents to support 
his motion; and yet, according to Mr. Hay, it was dictated by 
nothing more than the policy to defame general Wilkinson. Mr. 
Hay had wandered into the very error which he had charged to us. 
He had called upon the court to defend the character of general 
Wilkinson, the defender of his country, who is to come through 
the fiery furnace purer than gold; and yet he has himself 
charged the witnesses now before the court with malignity and 
rancour! That general Wilkinson was subject to the legal conse- 
quences of his own illegal acts, and o^Jght to' be punished; that 
the affidavits were to the point, and ought to be read: they 
would show that he practised a system of tyranny from the com- 
mencement. 



251 

Mn Bon B.'-^Why do gmdemen object tp the puMcnt motion 
being heard, when they have so often insisted upon their own 
right to be heard by the court i Why do they reproach us with 
shrinking from the evidence, when they are attempting to screen 
their favourite witness, general Wilkinson, from a fair investiga- 
tion of evidence ? The wimesses ought to have been under the 
protection of the court. Their countenancesdo not bespeak de- 
vils : they are like other men; but they are branded as villains. 
Does Mr. Hay desire that the characters of these men should be 
immolated to this saviour of his country? that their fair reputa- 
tion should be sacrificed to save his? The constitution has re- 
cognised the equality of man. Though those gentlemen may 
not be decked out in the tinsel ornaments of military grandeur, 
their rights as citizens, and the respect due to their characters, 
are the same as those of any other men. If Wilkinson be able to 
go dirough the fiery ordeal, put him on his trial. If his private 
declarations to Mr. Hay are to be set against their oaths^ let it 
be tried. I desire for them to be put on trial as well as general 
Wilkinson. Put them in one scale, and him in the other. We 
hope our motion will be heard. 

« 

Mr. Mac RAE,at some length, expatiated upon the impropriety 
of animadverting at this time upon the character of general Wil- 
kinson. The court had already said, that no step should be taken, 
which would affect the justice of the case ; and it was therefore 
much better for the court to pursue the suggestion which it 
had thrown out; to examine the papers in private, and see whe- 
ther the affidavits were relevant to the pomt, than to prejudice 
the justice of the case by a public exhibition of these affidavits; 
that be was prepared to vindicate his character; but this was not 
the time, and he wished the cause to be conducted regularly; 
diat the motion ought to be reduced to writing, and the court 
would then decide on it, and the affidavits together. 

Mr. WiCKHAM protested against the secret tribunal to which 
gentlemen wished to resort, for stifling inquiry and murdering 
character. That gendemen complained of the waste of time, but 
they themselves wasted the most by previous questions. The gen- 
tlemen who have made these affidavits are upon their oaths. Is 
it right, said he, for the counsel to charge them with perjury, and 
yet not give them an opportunity of vindicating their veracity ? 
If an expression escape our lips, we are charged with forestal- 
ing the public opinion. In every instance they wander into bold 
assertions and violent invectives. Is Wilkinson's ch;iracter too 
sacred for public investigation ? We have a right to be hcard^ 
and insist on it. 

Mr. Hay denied having made any such assertion. He had 
merely alluded to one expression in their affidavits, which was too 



252 

V 

monstrous to be believed. But why all this feeling mi the pn- 
sent occasion, when gentlemen have so often charged general 
Wilkinson with perjury ? 

Mr. Martin. — When did we charge him with any other 
perjury, than that of violating the constituuon which he had 
sworn to support? Is not this notorious? Are not Swartwoutand 
othei^s here to prove it? We did not say that general Wilkinson 
was ready to perjure himself; but merely that he had every thing 
now at stake, and would go almost all lengths to hang colonel 
Burr. 

Mr. WiCKHAM insisted on their right to go on with their 
motion; that the court only wished to get the affidavits to un* 
derstand their arguments better ; but even the court could not 
deprive them of the right to be heard as advocates. 

After some other discussion, Mr. Burr agreed to place the pa- 
pers in the hands of the court, and to waive his motion till to« 
morrow. . 

Chief Justice. — Reduce the motion to writing. [This was 
done.] 

Mr. Burr It is only upon the affidavits of Knox and 

Lindsley, that we move for a rule to show cause why an attach* 
ment should not issue against general Wilkinson. 

Mr. Martin hoped, as colonel Burr had postponed his nao- 
tion, the attorneys for the United States would postpone theirs. 

Mr. Hay refused, upon the ground, that the witnesses were 
now before the grand jury, and that his interrogatories would be 
necessary to direct their inquiries; that he knew the testimony bet- 
ter than they did, and in saving time, he wished to promote 
their convenience and to put them on the track to get the wkok 
truth. 

Mr. Burr. — I instructed my counsel to consent to this mo- 
tion upon the condition, that I should also be permitted to send 
counter-interrogatories; and the way to get the whole truth is to 
send interrogatories on both sides. 

Mi> Hat did not feel himself at liberty to acquiesce in such a 
proposition. He would rather trust to the distinguished intelli- 
gence of the grand jury. 

Mr. Martin said, that in his practice of nearly thirty years, 
he had never known interrogatories to be sent to a grand jury ; 
that such a practice had never been known in the whole history 
of jurisprudence. 

, Chief Justice said, that the court was utiwilling to declare 
its o))inion before it heard argument on that point ; that 
the practice was uncommon in America, because indictments 



253 

usually suggest enough to a grand jury; that there was no objeo 
tion, in principle, to interrogatories, but that the witnesses ought 
to be fully examined; that witnesses were only on one side, and 
therefore they should relate all they knew on both sides. 

Mr. Wirt. — Though the practice is unknown in America, 
yet in Shaftesbury's trial, questions were put by the attorney ge- 
neral, the court, and the grand jury; but the intelligence of this 
grand jury will save us this trouble. 

Mr. BoTTs.— I wish you h^d found out this before. 

Mr. WiKT. — It is time enough. 

Mr. Randolph. — The. case cited by Mr. Wirt, shows, that 
interrogatories on one side only are not admissible. The court 
was counsel for the prisoner. 

Chief Justice. — I do not recollect whether at that time a 
prisoner were allowed counsel or not. 

Mr. Hay.— -If the court allow interrogatories by both sides^ 
to be sent to the grand jury, I am not willing to send any. I 
never heard of such a case. 

Chief Justice. — Nor hath the court; but as the grand jury 
are only to examine witnesses on behalf of the prosecution, if 
diey are to be aided by interrogatories, the principle of equal 
justice requires, that the witnesses should disclose all they know, 
on one side as well as on the other, and that the interrogatories 
should be sent by both sides. 

Mr. Burr stated that he recollected no instance of interro- 
gatories sent to a grand jury, except in Kentucky, in the prose- 
cution against himself. That Mr. Davies, the attorney for the 
United States, had drawn up some interrogatories, which were 
shown to him, and with some slight alterations suggested by him-' 
self, were sent to the grand jury. 

Here some conversation ensued relative to the form of the 
motion for an attachment against general Wilkinsoti. The coun« 
sel for the United States insisted upon a specification of the 
conduct, for which it was to issue; that if generally expressed as 
a ^^ contempt of the court,'' nothing but the spirit of divination 
could enable him to discover the specific ofifence charged against 
him, nor to prepare for his defence; that the precise circum- 
stances which constituted the offence ought to be particularized. 

Mr. Burr and his counsel said, that the specification was to 
be found in the two affidavits, and that it was from delicacy to 
gendemen, he had not attempted to make these affidavits matter 
of record, by introducing them on the face of the motion. The 
motion reduced to writing, stated the offence to be ^^ for a con- 
tempt in obstructing the administration of the justice of this 
court.'' The court then adjourned till to-morrow, eleven o'clock. 



254 

Saturday, June 20th, 180y. 

The court met according to adjournment* Present^ the same 
judges as yesterday. 

Mr. Randolph rose to proceed with his motion, when he 
was interrupted by Mr. Hay, who spoke to this effect: 

I have a communication to make to the court, and to the 
counsel of the accused. The court will recollect the answer 
which I received from the president, to my letter respecting 
certain papers. He stated in that letter, that general Wilkin- 
son's letter of the 21st October had been delivered to Mr. 
Rodney, the attorney-general, from whom he would endeavour 
to obtain it. By the last mail I have received this letter from 
the president on the same subject. 

Washington, June 17th, 1807. 
Sir, 
In answering your letter of the 9th, which desired a com- 
munication of one to me from general Wilkinson, specified by 
its date, I informed you in mine of the 12th, that I had deli« 
vered it, with all other papers respecting the charges arainst 
Aaron Burr, to the attorney-general when he went to Rich- 
mond; that I had supposed he had left them in your possession, 
but would immediately write to him, if he had not, to forward 
that particular letter without delay. I wrote to him accordingly 
on the same day, but having no answer, I know not whether he 
has forwarded the letter. I stated in the same letter, that I had 
desired the secretary at war to examine his office, in order to 
comply with your further request to furnish copies of the ofi- 
ders which had been given respecting Aaron Burr and his pro- 
perty ; and, in a subsequent letter of the same day, I forwarded 
to you copies of two letters from the secretary at war, which 
appeared to be within the description expressed in your letter. 
The order from the secretary of the navy, you said you were in 
possession of. The receipt of these papers has, I presume, sa 
far anticipated, and others this day forwarded, will have sub- 
stantially fulfilled the object of a subpoena from the district 
court of Richmond, requiring that those officers and myself 
should attend the court in Richmond, with the letter of gene- 
ral Wilkinson, the answer to that letter, and the orders of the 
department of war and the navy therein generally described. 

• No answer to general Wilkinson's letter, other than a mere 
acknowledgment of its receipt in a letter written for a different 
purpose, was ever written by myself or any other. To these 
eommunications of papers, I will add, that if the defendant 
suppose there are any facts within the knowledge of the 

' heads of departments, or of myself, which can be useful for his 



255 

defence, from a desire of doing any- thing our situation will 
permit in furtherance of justice, we shall be ready to give him 
the benefit of it, by way of deposition through any persons 
whom the court shall authorise ta take our testimony at this 
place* I know indeed that this cannot be done but by consent 
of parties, and I therefore authorise you to give consent on the 
part of the United ^tates. Mr. Burr's consent will be given of 
course, if he suppose the testimony useful. 

As to our personal attendance at Richmond, I am persuaded 
the court is sensible, that paramount duties to the nation at 
large, control the obligation of compliance with its sum- 
mons in this case, as it would, should we receive a similar 
one to attend the trisds of Blannerhasset and others ia the 
Mississippi Territbry, tho^e instituted at St. Louis, and odker 
places on the western waters, or at any place other than the 
seat of government. To comply with such calls, would leave 
the nation without an executive branch, whose agency never* 
theless is understood to be so constantly necessary, that it is 
the sole branch which the constitution requires to be always in 
function. It could not, then, intend that it should be withdrawn 
from its station by any co-ordinate authority. 

With respect to papers, there is certainly a public and pri- 
vate side to our offices. To the former belong grants of lands, 
patents for inventions, certain commissions, proclamations, 
and other papers patent in their nature. To the other belong 
mere executive proceedings. All nations have found it neces* 
sary, that, for the advantageous conduct of their affairs, some, of 
these proceedings at least, should remain known to their exe- 
cutive functionary only. He, of course, from the nature of the 
case, must be the sole judge of which of them the public in- 
X terest will permit publication. Hence under our constitution,' 
in requests of papers from the legislative to the executive 
branch, our exception is carefully expressed, ^^ as to those 
which he may deem the public welfare may require not to be 
disclosed," as you will see in the inclosed resolution of the 
house of representatives, which produced the message of 
January 22d, respecting this case. The respect mutually' due 
between the constituted authorities in their official intercourse, 
as well as sincere dispositions to do for every one what is just, 
will always insure from the executive, in exercising the duty 
of discrimination confided to him, the same candour and inte- 
grity, to which the nation has in like manner trusted in the dis- 
posal of its judiciary authorities. Considering you as the or- 
gan for communicating these sentiments to the court, I address 
them to you for that purpose, and salute you with esteem and 
respect- 

TH: JEFFERSON. 



256 

Accompanying this lietter is a copf ot the resolution of the 
house of representatives, containing the exception to which th6 
president refers. I have also received a letter from Mr. Smith, 
secretary of the navy, containing an authentic copy of the or- 
der which was wanted, precisely corresponding with the unau- 
thenticated copy in my possession. 

Mr. WicKHAM.— I presume that these must be considered 
and noted as the return to the '* subpoena ifuces tecum.^^ 

. Mr. Hay. — So far as they go. When we receive general 
Wilkinson's letter; the return will be complete. I have also re* 
ceived a letter from the secretary at war, which contains all the 
orders of his department relative to Aaron Burr. All which 
papers I shall deposit with the clerk of this court. 

The following is the order of the navy department: 

I certify that the annexed is a true copy from the records in 
the ofEce of the department of the navy of the United States, 
of the letter from the secretary of the navy, to captain Joha 
Shaw, dated 20th December, 1806. 

, In faith whereof, I Robert Smith, secretary of the navy of 
the United States of America, have signed these presents, and 
caused the seal of my office to be affixed hereto, at the city of 
Washington, this 17th day of June, anno Domini j 1807; and in 
the 31st year of the independence of the said States. 

(Registered,) RT. SMITH. 

Ch. W. Goldsborough, Secretary of the Navy. 

Ch. Clk. N. D. 

(Copy) 
Navy Department, 30th December, 1806. 
Sift, 
A military expedition formed on the Western waters by co« 
lonel Burr, will soon proceed down the Mississippi, and by the 
time you receive this letter, will probably be near New-Or» 
leans. Tou will by all the means in your power, aid the army 
and militia in suppressing this enterprize. You will with your 
boats take the best position to intercept and to take, and if ne* 
cessary, to destroy the boats descending under the command of 
colond Burr, or of any person holding an appointment under 
him. There is great reliance on your vigilance and exertions. 
I have the honour to be, sir, your most obedient, 

(Signed) RT. SMITH. 

Captain John Shaw, 
or the Commanding Naval Officer, - 
at New-Orleans. 



257 

Mr* R ANDOLPB— May it please your honours: 

I am now about to commit to your attention the motion of 
which we gave notice 9ome days past* The general purport of 
it will be, to award a rule against general Wilkinson, to show 
cause, why an attachment should not issue against him for at- 
temptiQg to obstruct the free administration of justice. Whe* 
iher we shall be again charged with an mtention to inflame the 
public mind against general Wilkinson, or to defame him, I 
know not; but of one thing I am conscious, that my object is 
essentially different. We do not proceed on mere ^neral sur- 
mise; but on plain £acts» We shall endeavour to remove all the 
{M'ejudices which have been excited, and shall rely on plain facts 
only* We hope to guard the public mind against erroneous im- 
pressions, by depending on correct evidence alone; and that it 
will be manifest to all, that every effort to obstruct the free will 
of a witness should be punished. If general Wilkinson^s cha- 
racter should be incidentally affected, it will not be our fault. 
If he must take upon himself the legal consequences of his 
own improper conduct; if be must submit to legal doctrines; 
be cannot complain. It is due to the United States, to the 
witnesses themselves, and to the persona accused, that obstruc- 
tions to the free administration of justice should not pass with 
impunity. Sir, we shall attach general Wilkinson on specific 
allegations, and by specific facts. It is his duty, if he can, to 
repel these by legal evidence; not by illegal testimony^ or the 
protestations of his counsel, that they believe him to be inno- 
cent, and an Israelite without guile. I prefer this coarse, that 
there may be no more waste of time in passing eulogies on 
general Wilkinson. There will be a future occasion which 
will require the concentration of all his bistre^ and it will be as 
well that the beams of his glory should not be dissipated till 
we make the attack that will strike home. 

The ground on which we make the motion is this, that ge- 
neral Wilkinson, who is now before the court, in a case de^ 
pending between the United States and Mr. Burr, deliberately 
abused the process of the law relative to a witness who has 
been summoned in this case. He contrived, on his own affida- 
vit, and by his own power, to obstruct the free course of legal 
testimony, and to intimidate, and coercively bring t6 this court, 
a witness, by the abuse of military authority. For this illegal 
proceeding it is the duty of the court to taie notice of gene- 
ral Wilkinson. As the cases ought to be kept distinct, I speak of 
him only; but it may be necessary to carry the principle into 
immediate execution as to other persons. The grounds of this 
accusation are the depositions of James Knox and Chandler 
Lindsley, which will be read to the court. 

Vol. I. 2 K 



^58 

Mr* Hay objected to the introduction of these affidavits, bew 
tause he understood that they had been written and dictated 
by the counsel of colonel Biu-r. He did not pretend to say, that 
they contained any thing which they did not believe to be true, 
nor did he know their contents; but he understood, that they 
were introduced for the purpose of strengthening some testi* 
mony concerning general Wilkinson, or of showing improper 
conduct on his part; that he underwood, that those witnesses 
had voluntarily gone and given information to the counsel. 
Upon which the counsel had written or dictated the terms of 
those affidavits; that his idea was, that when affidavits are taken 
by the opposite counsel, though the court may be perfectly sa- 
tisfied with the conduct of the counsel in taking them, yet ac* 
cording to universal practice the court would not permit them 
to be read; that the legal authorities showed, tliat a court 
would never issue an attachment founded on affidavits taken 
by the agent or attorney of the party applying for it; that this 
court would admit of no exceptions to this rule; the court of 
king's bench determined that ^^ it was invariable and founded 
on the wisest and most obvious principles.'' Mr. Hay here 
cited the case of the King v. Wallace, in 3 Term Rep. p. 403., 
where the court had set aside an affidavit that had been sworn 
to before the attorney for the prosecution, and refused to grant 
an attachment ; that the present case was sti'onger than that. 
The objection in that case was, that it was sworn to before the 
counsel: the objection here is, that it is penned by the counsel, 
and is therefore stronger and more within the scope of thar 
policy on which the principle of the law is founded; that how- 
ever he did not mean to reproach gendemen for the course 
pursued in this instance ; that he was sure that nothing like 
impropriety was thought of by them, and that perhaps he 
would have done the same thing in their situation.. 

Mr. Baker. — May it please the court. I shall not under- 
take to say, what Mr. Hay would have done in our situation, 
nor do I feel much interested in knowing; but I rise solely for 
the purpose of correcting a mistake, which he has committed. 
He says, that these affidavits were originally written by coloniA 
Burr's counsel. As to the affidavit of Knox, I know I can say 
nothing; but as to the affidavit of Lindsiey, it was written br 
himself. The facts are simply these: He called upon me with 
his affidavit already written, (I had never seen him before) to 
know whether it were correctly written or not. I read it, cor- 
rected some inaccuracies in the style, and wrote it over again : 
it was not sworn to when brought to me. After I had corrected 
those grammatical errors, and submitted it to Mr. Lindsley'a 
mspection, he said that the statement was perfectly correct. 



259 

Mr. Wirt.-— Do you know, Mr. Baker> who induced Mr. 
Lindsley to adopt that course ? 

Mn Baker. — Perhaps yourself, sir: I never saw Mr. 
Lindsley before. 

Mr. Mac Rae. — I beg to add one observation to what has 
been already said on this subject. As the witnesses are now 
before the court, and can be examined viva voce^ there is no in* 
convenience in the objection. If they were at a distance, so 
that they could not be personally examined, we should have 
found no difficulty in admitting their affidavits; we should have 
waived the objection, lest it might seem that we were afraid of 
them. I hope that it will not be believed, that we feel any such 
apprehension. I hope that it will seem to the court right, that 
the affidavits shall not be read, especially as our affidavits were 
objected to, when our witnesses were at New*Orleans. I hope 
that gentlemen will not insist on the necessity of discussing 
diis point farther. If they wish to know the whole truth, they 
will consent to examine the witnesses in open court. 

Mr. WiCKHAM hoped that gentlemen would persevere in 
the course which they had this day begun ; and instead of warm 
and desultory declamation, come at once to the law and autho- 
rities. They object to the reading of our affidavits, and the 
question is, whether in point of law, their objection will be 
sustained? It happens in many cases, and must happen in the 
progress of litigation, whether between individuals, or between 
the public and individuals, that collateral points arise, in which 
it is necessary that testimony should be heard : but if on every 
collateral question, wW voce testimony were to be introduced, 
great inconvenience would result; it would lead to an unne- 
cessary confusion and waste of time: and the regular and 
established practice, therefore, is, when these collateral points 
occur, not to produce viva voce testimony, but affidavits in sup- 
port of them. These affidavits are made before private magis- 
trates; that is the authority by which they are taken* These 
being in writing, must necessarily be written by one of three 
descriptions of persons: by a magistrate or judge; by the party 
himself, or his agent; or by the witnesses. With respect to the 
necessity of t-heir being written by a judge or magistrate, it 
will not be contended, that they are bound to subo^it to the 
drudgery of writing the affidavits, and most of them have no 
clerks. It is therefore usual to prepare the affidavits before, and 
for the magistrate to sign them thus previously prepared: and 
besides, a man may be an able magistrate, but a bad clerk. With 
respect to the parties themselves, it will not be contended^ 
that they ought to write them, because a very great propor- 



260 

tion of Aem are unable to write them. Who then is to write 
them ? their counsel or agent, or some indifferent person. How 
can tht party get an indifferent person to write his affidavits? 
The moment he calls for an indifferent person to write them, 
he becomes his agent, and is incapacitated from writing them: 
and according to the gentlemen's arguments, these affidavits 
could very seldom be produced. Hence, from the necessity of 
the case, a custom has prevailed among lawyers, to write their 
clients' affidavits ; and the gentleman himself admitted fifteen 
minutes ago, that he has been in the habit of doing so himself. 
As to the authority quoted by Mr. Hay, had he considered 
it but one tenth part of the time he has argued it, he would 
have seen that it did not apply. In that case, the affidavits, on 
which the motion for an attachment was founded, were sworn 
to before Lothian, who was the attorney, or agent, for the pro- 
secution. Here the affidavit was written by the witness himself, 
and only corrected and copied by the counsel. Does the gen- 
tleman suppose, that the actual presence of the attorney would 
vitiate the affidavit?. When a man writes an affidavit^ he acts a 
mere ministerial part; but he who administers an oath, per- 
forms the judicial function of a judge, or justice of the peace. 
It is a sacred rule, that a magistrate who administers an oath, 
should be disinterested between the parties: and in the case 
referred to, he who administered the oath was not disinterest- 
ed, but the attorney for the prosecution. I recollect an instance 
in this city, where a magistrate, who was also a practitioner of 
the law, drew an oath and administered it himself, even in his 
own case: the first was not improper, though the second was* 
Here Mr. Baker wrote the affidavit, but did not administer the 
oath. There is a substantial and plain reason, why the oath 
should be administered with impartiality, but no reason can be 
assigned why the agent of the party should not, as in this in- 
stance, copy, and correct, in point of language, at the instance 
of the witness, an affidavit prepared by the witness himself. 
As to the witness being present, it makes no difference. The 
practice, in such cases, is to read affidavits just as if the wit- 
iliesses were absent. 

Mr. Burr. — If it were perfectly agreeable to you, I should 
have Qo objection to an examination of the witnesses in court; 
although the practice is, on principles of convenience,otherwise: 
but if the court will submit to the inconvenience, it will be agree- 
able to me. As to the origin of this business, it is not perfectly 
Understood, and some unfounded insinuations have been made 
concerning it. James Knox called on me, stated the usage 
which he had received; and asked, whether any redress could 
be obtained? One of my counsel, who was present at this inrter- 



261 

view, concurred in opinion with me, that some nodce should 
be tak^n of this proceeding. We at first thought of referring 
him to Mr* Hay ; but on reconsideration, we thought that, per- 
haps, Mr. Hay might think himself disqualified from acting. 
Mr. Knox^s own idea was, that he ought to come into court, 
and complain, himself, of the treatment he had received. 

Mr, Wirt. — Mr. Wickham says, that it is the practice to 
produce affidavits on such motions: but this practice is found-* 
ed on expediency, and when it ceases to be expedient, the prac-* 
tice will also cease* The inquiry then will be, whether it will 
be most expedient to examine a number of witnesses openly^ 
who are now in court, or take their affidavits smd read them? 
The court would wish to*come at the true state of facts. I hop<^ 
the gentlemen on the other side, would also wish the same* 
You are called on, to make a rule, against general Wilkinson, 
to show cause, why an attachment should not issue against 
him ; and to support this application, affidavits are offered, and 
said to be founded on expediency. We contend that viva voce 
testimony is better. Before you grant it, you must be satisfied 
that it is right. The question then is, which is most satisfac- 
tory to your mind, an affidavit taken by the party, or evidence 
stated by the witness himself? How can the court be satisfied 
till the witness be examined and fully heard? Was the affidavit 
written by the witness himself? Did it proceed from him? oi^f 
was it advis6d by him ? or, did it contain his words ? The coon* 
sel, no doubt, endeavoured to draw it as correctly, and as free 
from bias, as he 'could ; but it was difficult to state it precisely 
as the witness would have done. The witness states his facts, 
but he states them in his own language* Is it likely, that when 
it is changed to the words of the attorney, the idea intended 
to be expressed by the witness, will be precisely retained? If 
you take the evidence, not from the fountain head, the witness 
himself, but from a statement taken by another, you run the 
risk of not being righdy informed: but if you examine the wit- 
ness, there can be no mistake. 

Mr. BoTTs said, that colonel Burr had acquiesced, and con- 
sented that the witnesses should be examined in court, though 
he regretted the departure from usage established on princi- 
ples of convenience. 

Mr. Martin.-— If the witness-be examined, the clerk will 
reduce what he shall say to writing, so as to give it the effect 
of an affidavit. 

Mr. Hay apologised for frequently misunderstanding colo* 
nel Burr. He complained, diat from their respective situations 
he could not hear the accused, notwithstanding his clear and 
distinct voice, and emphatic manner. 



S62 
James Knox was then called, when 

i 

Mr* Mac Rae addressed the court. He said, that as the 
business was of considerable importance to general Wilkin* 
son, it was extremely desirable, that he should be present at the 
examination of this and the other witnesses, who might be in- 
troduced on this occasion ; that he was now before the grand 
jury, and he had applied to the gentlemen on the other side to 
postpone the motion till he could be present, but they objected 
to any delay. He therefore found it necessary to apply to the 
court, to suspend the examination for a short time, till the 
general could be present; that important facts, unknown to the 
counsel for the prosecution, might be within the knowledge of 
general Wilkinson, who therefore might materially direct their 
inqoiries in this examination. 

Mr. Martin said, that the gentleman did not seem to know 
in what stage of the business they were then engaged ; that the 
question was, whether a rule should be granted to show cause; 
with which neither general Wilkinson nor his counsel had any 
thing to do, and were not, in fact, as much as supposed to be 
present; and that the court would take care that the witnesses 
should answer correctly. 

Mr. WiGKHAM complained, that they had been for a consi* 
derable time prevented from making the motion, by the delay of 
the gentlemen on the other side, and of general Wilkinson. 

Mr. Mac Rae.— The gentleman from Maryland has said> 
that we were not present in court. I thought, that all the while 
he «poke, we were m court. The court were pleased to notice 
our presence, and we were heard and answered politely and re- 
spectfully; and what has the court said? That gentlemen on 
both sides in court, had a right to argue this question. It is 
now too late for them to say, that they are exclusively engaged 
in this motion, which we have an acknowledged right to dis- 
cuss and oppose ; and we shall be perfectly satisfied, if the court 
will take notice of ourobservations,although Mr. Martin should 
not. We hope, that if the reasons for desiring general Wilkin- 
son's attendance appear as strong to the court, as to the coun- 
sel for the prosecution, it will consent to this short delay. 
We mean, with the leave of the court, to put some questions to 
the witnesses, and also, to produce some testimony ourselves ; 
and we feel confident, that we can satisfy the court, that no just 
foundation exists for the present motion. 

Mr. Martin.— I thought I had assigned very sufficient rea- 
sons why the business should not }ih delayed. I knew they were 
personally present. I saw them; and if I had not, they took good 



263 

care to make os often hear them. They detained us three qr 
four hours the other day, in opposing the motion for a subpoena 
duces tecumy after the court had decided^ that they had no right 
to interfere. It is unfair to take up a great deal of the time of 
the court, when, in point of legal contemplation, they are not in 
court. Let the present motion be decided, and when the rule 
is made, they may bring counter affidavits. 

Mr. Wirt. — If presence depend on speaking. Mr. Martin 
is not only present, but, perhaps, is the only person who 'is. I 
am willing, however, to be considered, if he please, as not le- 
gally present; but, as amicus ctirior^ I may make a few observa- 
tions. These questions may merit the consideration of the court. 
^' Here is a rule which I am required to make on general Wil- 
kinson, to order him to show cause, why an attachment should 
not issue against him. Shall I make it on a personal examina- 
tion of the witnesses, or follow custom, and by taking their af- 
fidavits exclude part of their evidence? Shall I use one or two 
links when I may have the whole chain before me? Where tes- 
timony is present, ought I not to take the full benefit of it?" The 
inquiry will be made, whether the man's interrogatories, when 
general Wilkinson is present, will not give more satisfaction to 
the court than his mere affidavit? Will not the court think, that 
a full view of the evidence will be better? Though not present, 
he is deeply interested in the event of this motion, when its ob- 
ject is, that he should show cause, why an attachment should 
not issue against him for a supposed contempt of the court: his 
character as a man, as well as his credit as a witness, is aifected. 
We are told, that the streams of the prosecution should be kept 
dear and untroubled. If gentlemen be serious in these admo- 
nitions, they will not persist in this mode of exhibiting mutila- 
ted testimony ; for these ex parte affidavits, uncontradicted by 
general Wilkinson, may unjustly prejudice the public opinion 
against him* We hope that the court will, for themselves, as 
well as for general Wilkinson; for expediency and public jus- 
tice, suspend this examination for a short time, till he can be 
present* We do not wish a postponement for two or three days 
or more, but a mere suspension while he is necessarily before 
the grand jury. 

Mr. Martin drew an analogy between this motion and the 
proceedings before the grand jury. Gentlemen, said he, have no 
more right to interfere, in this stage of the business, than we 
have to interfere before the grand jury. It is exclusively in the 
power of the counsel for the prosecution to send witnesses be- 
fore the grand jury. We have^no such right. When the grand jury 
find a true bill,and the trial in chief comes on before the court, 
we can introduce what evidence we please, but not before ; 



264 

the princifde is the same here. Gentlemen have no right to intr#« 
duce testimony when we apply for the rule, but after it is grant- 
ed, and they come forward to show cause against issuing the 
attachment; then they have an undoubted right to adduce what 
testimony thty think proper, to show that it ought not to issue* 
But gentlemen say, that granting the rule may possibly tarnish j 

the reputation of general Wilkinson* He may, on showing cause * 

against the attachment, come forward in vindication of his cha- 
racter. We have no right to bring testimony in our exculpation 
before the grand jury% where indictments and accusations, com- 
mitting our character and as materially injuring us as he can be 
by this motion, are exhibited. Were we to attempt it, their answer 
to us would be, *' Tou are irrtgular; you can introduce no evi- 
dence before the grand Jury^ and if they find any bill against 
youy you can wipe off the impression made by their findings in the 
usual and regular manner.^'* As this is the way in which we wipe 
off the impression of what is before the grand jur}% so he can 
wipe off the effect of granting the rule, on showing cause. 

Mr. BuRR.-*-It is not my wish to prevent gentlemen from 
producing testimony in behalf of general Wilkinson, or to pre- 
vent his witnesses from being heard; but this can be done by 
introducing their affidavits. I object only to the innovation of 
examining them personally on collateral motions like this, instead 
of reading their affidavits. 

Mr. Hay.— -It seems to be conceded that general Wilkinson 
may produce testimony in his patt. He has been three hours be- 
fore the grand jurj^*, and in a very short time he may be dis- 
charged and appear in court. It is singular that we should, by 
their own concession, have the right to appear and interrogate 
witnesses after the rule is made, and yet not at this stage of the 
proceedings, when we are present to contest it. The party on 
whom such a rule is usually made, is absent; and the object of 
it is, to bring him forward and to show cause, if he can, why he 
should not be attached for his supposed misconduct. No oppo- 
sition is usually made, because the party happens to be at a dis- 
tance ; yet if he be on the spot, as in the present case, there could 
be no sort of reason or justice in preventing him from showing 
at once that the charge's against him are perfecdy visionary and 
groundless. 

Mr. WicKHAM stated the importance of immediately pro- 
ceeding with the motion; and that, according to law. and practice, 
there was no just ground of opposing it; but that if the counsel on 
the other side would name a particular hour in the course of this 
day, when the motion would be made, they would waive their 
right of going on with it now. 



265 

Mr. Martin hoped, that the court would express in its or- 
der, that diis postponement was not in consequence of the right 
of the gentlemen to demand it, but of the consent of his friend. 

Chief Justice said, that it was unnecessary to do so. He 
stated what the law and practice were, and observed, that if the 
motion were to be postponed till Monday, and the witnesses on 
both sides were then heard, it would answer every purpose; and 
it might be considered then as a motion for an attachment, not 
for a rule to show cause. This would prevent disputes and delay. 

Mr. Randolph.-— We shall move then immediately for an 
attachment. 

Mr. Mac Rae observed, that they only wished the motion 
delayed till general Wilkinson could be permitted to attend. 

Mr. Hay wished, that in order to save time, gentlemen would 
prepare their interrogatories, by reducing them to writing. 

Mr. Martin said, that this could not be done till it was de- 
termined that an attachment would go; but that there would be 
no delay on that account. 

The examination was then postponed till Monday; and the 
court adjourned till that day, at eleven o'clock. 

Monday, June 22d, ISOr. 

The court met according to adjournment. 

Mr. Randolph, having directed James Knox and Chandler 
Lindsley to be called, was proceeding to open the motion which 
he had introduced on Saturday — 

Mr. Mac Rae had understood that this motion was to be 
postponed till general Wilkinson could be present; and that the 
moment he was discharged from the grand jury, they should 
notify the opposite counsel of it. 

Chief Justice said, that as this was a motion for an attach- 
ment against general Wilkinson, he ought to be heard in his 
defence. 

Here a desultory discussion took place. 

Mr. Botts observed, that from a spirit of accommodation, 
they had agreed on Saturday, to postpone their motion till this 
day; but it was in certain expectation that general Wilkinson 
would beliere to-day, and that their motion would be no longer 
delayed; that if they consented to further delay, it might take 
several days before the general would be discharged from the 
grand jur}*; that though he was not present himself, he was ably 
represented by counsel; and that considering the hardships and 
inconvenience imposed on colonel Burr, by such delays, he hoped 

Vol. I. 2 L 



266 

that they would now be permitted to proceed in their motion for 
an attachment, or a rule to show cause. 

Colonel Burr enforced the same principle. He was unwilling 
to contravene the opinion or wishes of the court ; but the subject 
required a few remarks. On Saturday, he had waived his rights; 
he had consented to vary the motion, to give general Wilkinson 
an opportunity to be present, under an expectation that he would 
be here on this day, and that the motion would certainly be 
made; but he asked, whether his consent was to be indefinitely 
extended to any period f It was then in his power to vary the 
form of the motion once more: but notwithstanding the inconve- 
nience it wotild occasion to himself, he was ready to waive hi& 
motion for the present, if they would but name a certain time 
to-morrow, when they would be certainly ready. 

Mr. Wirt declared that it was impossible for them to say, 
when the grand jury would finish the examination of general 
Wilkinson; before which time he could not come into court. 
We would have thanked gentlemen for the accommodating spi- 
rit which they had manifested, if they had not completely wiped 
away the obligation, by converting it into a topic of reproach.. If 
the rule were granted, general Wilkinson would still be before 
the grand jury, who would not spare him to the court. 

The Chief Justice said, that the court would have conceiv- 
ed itself bound to hear the motion for the rule, as it was a motion 
of course; but now it was varied, partaking of a motion for a 
rule to show cause, and of one for an attachment. That if general 
Wilkinson should be in court to-morrow, the motion might go on ; 
that it was not certain that he would be present; but that the tes-* 
timony of colonel Burr could not be delayed longer than till 
to-morrow; and that general Wilkinson could cross examine 
those witnesses when he came into court. 

Mr. Hay stated, that this was the very circumstance which 
they wished to avoid; that those witnesses were brought hither 
to accuse general Wilkinson, and that he ought to be present t« 
shape his inquiries according to their evidence, and to expose 
their fallacy. 

Chief Justice. — General Wilkinson cannot cross examine 
them till colonel Burr have done with them. 

Mr. Hay. — How can general Wilkinson know what questions 
to put, if he know not what testimony has been given^by those 
witnesses? 

■ Chief Justice. — All the questions put to them, and their 
answers, will be reduced to writing. 

Mr. Hay was unwilling that gentlemen should believe that 
he wished to waive the discussion for, a single moment. Perhaps 



267 

die grand jury would spare him for au hour* He understood 
that he was then employed in decyphering a letter before them* 
He suggested that a messenger should be sent up to the grand 
jury, requesting them to spare him for an hour, if it were com- 
patible with their arrangements. 

The marshal was accordingly sent to deliver the message, who 
returned and informed the court, that general Wilkinson was at 
that moment under examination. The motion was accordingly 
postponed till to-morrow, when it was understood that it wovdd 
certainly be made. 

The Chief Justice observed, that the attorney for the Uni- 
ted States might state to general Wilkinson, the facts which 
were charged in the affidavit, and which would agree in all the 
most material points with the interrogatories that would be 
proposed to the wimesses. 

The court adjourned to the usual hour of adjournment. 

Tuesday, June 23d, 1807. 
The court met according to adjournment. 

General Wilkinson appeared in court, and took his seat among 
the counsel for the United States. 

Mr. Burr rose and observed to the court, that as general 
Wilkinson was then present, he would proceed with his inquiry. 
He would have it, however, distinctly understood, that if the 
<3harge could not be brought home to general Wilkinson himself, 
so as to support the motion against him, yet it must attach ac- 
cording to the testimony, to any of his subordinate officers, as 
Mr. Gaines, or any other. 

Mr. Hay objected to this extension of the motion, which he had 
understood to be confined to general Wilkinson alone; particu- 
larly as they had not given any intimation of such an intention 
before: As no other person had notice of this intended motion, 
but general Wilkinson, the inquiry should be restricted to him 
alone. 

Mr. Randolph insisted that the evidence to be introduced in 
support of their motion, must attach to general Wilkinson, or any 
of his subordinate officers, or any other person, according to 
what the witnesses should prove. Before the witnesses were 
examined, he stated briefly the nature of their motion and the 
substance of the testimony by which he expected to support it. 
That the charge against general Wilkinson was, that he had, in 
conjunction with others, used unlawful and oppressive means, 
under colour and in abuse of the process of this court, to bring 
James Knox and Chandler Lindsley from New-Orleans to this 
city; and thus had obstructed the free course of testimony, and 
the&iirand regular administration of justice; and he hopedL,th8t 
if the evidence would prove the facts as he expected, the court 



268 

would punish him, his associates, dependents, or others, according 
to the degree of their misconduct. 

The witnesses were then introduced. James Knox was first 
sworn. His testimony, was as followeth: 

He says, that he went to New-Orleans some time in March ; 
soon after his arrival, he received a note from general Wilkin- 
son, making some inquiry concerning serjeant Dunbaugh. He 
waited on the general, who received and treated him handsome- 
ly, took him by the hand, and asked him if he were not afraid af* 
ter what had happened, and what had been said about him. He 
told him he was not afraid. He ^sked hint, whether he were at 
liberty to reveal what occurred in coming down the river ? The 
witness said he was at liberty to reveal what he knew; but did 
not wish to do so. He inquired whether the witness were a free* 
mason? He then began to take notes. The witness stopped him 
from taking down, and told him it was not his wish to have 
what he said taken down. He complained of distress ; expected to 
be ruined. Said that there was a great force coming down the river. 
He asked the witness his circumstances ; what money was due 
to him for his services in coming down? He answered, one hun- 
dred and fifty dollars. Asked him if he were in want of money, 
and offered to supply him, which the witness refused. He said 
he was very unhappy; had lost his wife; but all that was no- 
thing to his trouble on account of the state of the country. The 
witness said that a subpoena had been served on him about the 
12th of May, by Mr. Gaines, to attend this court; that he told 
him he was not prepared to come round then, but he expected 
to get money in ten or twelve days, and would then be ready. 
He went to Gaines's office about four days afterwards; was 
taken by a sheriiF on Sunday evening, who took him to judge 
Hall's. The judge was from home. He went again, and was told by 
the judge that he must give his deposition, or go round to Rich- 
mood. He answered, that he had no objection to going to Rich- 
mond; but having no counsel, would not give his deposition, 
lest he should commit himself. No person but the sheriff was 
present. The governor desired the sheriff to take his word, if 
the judge could not be found : saw the judge, and was bailed 
until eleven o'clock ; gave two securities, bound in five hundred 
dollars each, to avoid being put in gaol. When he appeared, the 
judge had before him a number of printed interrogatories. The 
witness asked the liberty of reading them. He permitted him to do 
80. The judge asked him if he would answer. The witness refused 
until he had counsel; but offered to be placed iu confinement 
until he could procure counsel. He afterwards saw, as his coun- 
sel, Mr. Carr, who informed him that the judge had no right to 
demiand such answers. The judge still persisted to interrogate 
him, to some of which interrogatories he answered, in order to 
save trouble. The witness then related every thing that passed, 



269 

from Meadville, until his arrival in New-Orleans. Mr. FortMras 
then sent for and interrogated. He made some observations, and 
refused to answer (being, he said, about Tom^ Dick^ and Harry). 
After which the judge gave the deputy marshal a note, who put 
Fort and the witness into gaol, among forty or fifty negroes and 
criminris. Fort was bailed by his friends ; but they required bail of 
the witness in five or six thousand dollars, and he remained in gaol 
until the vessel was ready, in which he embarked. He requested 
leave to get his clothes. Dunbaugh then came with some men with 
belts and side-arms. The witness asked if they were a guard ? He 
was answered, no; but that they were some acquaintances. That 
he has since been told by Dunbaugh, they were a guard. They 
went with Dunbaugh and himself, to the water edge. The wit- 
ness asked whether lieutenant Gaines were on board ? They said 
no, but soon would be. When Dunbaugh came to the gaol, he 
had an order which was handed to the gaoler. While in gaol, the 
witness wrote to Lindsley and doctor MulhoUon, to come and 
see him; and told them if they came to New-Orleans, what they 
might expect. He was informed by the gaoler that they would 
be confined. He did not send the note. He did not see Gaines 
until the next day. When lieutenant Gaines came on board the 
vessel, he said the witness was in a bad humour; the witness 
told him he was, and Gaines said that he had better be satisfied, 
and bear his situation with patience. He asked Gaines for leave 
to go on shore for his clothes, he did not care what guard was 
sent with him. Gaines said, that it was not in his power to grant 
it, but the power was in general Wilkinson. The witness was 
not permitted to get his clothes, and came without any except 
what he had on at the time, and except that Lindsley brought 
him one of his shirts which he had lept him. Gaines, after hav- 
ing told him that he might put him in irons, and bring him round 
in that manner, offered him forty dollars. The witness said, that 
if he would let him go on shore, he did not want it, otherwise 
must take it It was paid and sent on shore; twenty dollars were 
paid to his landlord, and the other twenty dollars returned to 
him by governor Claiborne, who came on board and went with 
them six or eight miles on the passage. And also, when they 
came to anchor in Hampton Roads, Gaines asked him if he had 
any objection to coming to Richmond ; he answered that he 
never had any objection. Gaines said, that he was sent by the au- 
thority of judge Hall. General Wilkinson spoke to him next day, 
and asked him if he had any objection to come to Richmond. 
He answered he had not, if properly treated; but he had been 
brought off without clothes or money. General Wilkinson had 
not heard of his not being permitted to bring his clothes, until 
that morning. General Wilkinson agreed he was ill treated. 
Told him that he (witness) must understand, that he was brought 
reund by the direction of judge Hall. General Wilkinson pro- 



270 

posed to let the witness go to Richmond upoo his parcde of ho* 
tiour, which was refused. Wilkinson said, if the witness wanted 
twenty dollars, he should have it; afterwards he talked with Mr* 
Lindsley, and returned to the witness and said, if he wanted fifty 
dollars he might have it. Witness wanting money to purchase 
clothes, took it. He observed, in the first conversation, that he 
had twice asked favours of him and .Gaines, and would never 
ask a third favour of any person* He came to Richmond with 
Moxley, in a pilot boat. Moxley told him that he had orders from 
general Wilkinson, to take charge of the passengers on board 
the Revenge, and bring them to Richmond, and there wait his 
(Wilkinson's) orders. 

Cross-examination by the counsel for the United States* 
Have you any military commission? Answer: None. Where were 
you bom? Answer: In Maryland; left it very young; resided 
in Pennsylvania, and left it sometime in November last. Left 
Pennsylvania, (Meadville) for New-Orleans, on the 24th or 25th 
of November, went down the Alleghany and Ohio to Beaver; 
went from thence, with about twenty or thirty, to Blanner* 
basset's island, where he did not recollect to have staid but 
two days or a day and a half: left that place some time in 
December, Blannerhasset and another with them, who were the 
only persons who joined them there. Stopped at Shawnee Town; 
went with about double the number to Cumberland island, just 
opposite to the mouth of Cumberland river; staid a day and a 
half, met with colonel Burr and a few others; the whole number 
about fifty or/ sixty, about seven or eight boats, five fire-arms : 
went thence to Fort Massac; Serjeant Dunbaugh met them there 
with a musket, and after meeting with colonel Burr, he consi- 
dered himself under his direction. Went to Natchez. Colonel 
Burr did not accompany them* Went from Natchez to New- 
Orleans* Some of the boats were chartered and others sold. 
They arrived at New-Orleans on the 13th or 16th of March. 
The first notice he had, after seeing general Wilkinson, of the 
proceedings against him was, when he was carried before judge 
Hall* He was said to be carried under an affidavit of general 
Wilkinson before judge Hall* Captain Gaines requested nim to 
write to him on shore, and he would get what he wanted. He 
was not permitted to send the letter* Never mentioned this to 
general Wilkinson till they arrived in Hampton Roads* That he 
was treated as others while on his way; that is, as well as some; 
not so well as some, and better than others* Arrived at Richmond 
on Friday evening, put up at the Bell tavern. Three days elapsed 
before he saw colonel Burr. He mentioned the treatment he had 
received to colonel Burr, and intended mentioning it to the 
court, on his first appearance; but was told it was unnecessary* 
That general Wilkinson used no terror agamst him; and oiTered 
to relieve him if he wanted money. Whilst at the mouth of 



271 

CuinbcTland river, and wlien colonel Burr made his escape, he 
was one that took colonel Burr in a wheny, and carried him 
some distance, and left him in the woods; did not hear him ad- 
dress any one. The note written him by general Wilkinson, and 
sent by DUnbangh, was left at his house sealed : the object was 
to obtain some information about Dunbaugh* No letters. Car- 
ried colonel Burr's things to a parson Bruin's, as he was told* 
They had but few guns, which were traded for as they descend- 
ed the river. The vessel sailed from New* Orleans in half an 
hour after general Wilkinson came on board. The one hundred 
and fifty dollars offered him by general Wilkinson, he was in- 
duced to believe, was to bribe him to give evidence against colo- 
nel Burr, or it might be considered as a bribe. Said he could ob- 
tain from colonel Tyler a sufficiency to carry him home under 
his agreement with that gentleman. This conversation took place 
before the subpoena was served. 

Lieutenant Gaines was then sworn. He stated that he receiv- 
ed a letter irom the attorney general of the United States, en- 
closing subpcenas for witnesses against colonel Burr. That he 
went to New-Orleans in consequence, and arrived there on the 
7th of May. Called several times at the house where James 
Knox staid, with Mr. Lindsley and doctor MuIhoUon, and could 
not find them. He was told by the landlord, that those gentle- 
men walked out whenever be approached; they supposed he had 
something against them. He told his business, and at length saw 
them. They said, that the reason why they endeavoured to keep 
out of his way was, that they had belonged to Burr's party, and did 
not wish to appear against him. He told them that the comman- 
der in chief offered them a passage in the Upited States' vessel 
with him. He desired Knox and Lindsley to say whether they 
would come or not ? Knox said he could not come until he had 
made some money arrangements (though Lindsley seemed dis- 
posed to come on). That he then applied to judge Hall; the 
judge directed him to obtain an affidavit of the refusal, and that 
he would take the proper steps. He said, that the subpoena might 
be served by the marshal or sheriff, and proposed that he (lieu- 
tenant Gaines) should be appointed by the marshal, a deputy. 
He refused, unless he could afterwards be released from any 
farther service in that capacity. Next day the judge told him, 
that the marshal had left a deputation for him, and asked him if 
he would act; he answered that he would, on the foregoing 
condition, and that he should not attend to Knox, at New-Or- 
leans. Knox appeared always ill-natured, which induced him to 
ask him if he could do any thing for him ? He obtained from 
the United States' agent at that place, forty dollars, and offered 
it to Knox, which he, after some hesitation, accepted. In reply 
to his inquiries, whether Knox wanted assistance, he hesitated, 
and then said, that he wished to go on shore himself, to get some 



2%Q 

uecessaries out of his trunk* He told him that as the vessel was 
going to sail so soon, he could not; but offered him pen, ink and 
paper, and requested him to write to sotne friend on shore, to do 
what he wanted done; or he would act for him, himself* He was 
then in a very ill humour, and was so when the witness returned 
on board. James Knox was under no restraint, from the time the 
vessel sailed, till they arrived at Hampton Roads* To a question 
put by Mr* Burr's counsel, by whose authority he acted, lieu- 
tenant Gaines answered, that in every step relative to Knox, he 
acted under the authority of the marshal, at New-Orleans, ex- 
cept that he was authorised by the commander in chief, to offer 
him a passage in a public vessel* In serving the subpoena, he 
acted under the authority of the attorney general. When at 
Hampton Roads, he inquired of Knox, whether he had any dis- 
position to go to Richmond ? He said that he wished to come to 
Richmond, but wished also to leave that vessel. He told him he 
should leave it, but had not determined how he would be con* 
veyed to Richmond* General Wilkinson told him, all would 
come in a vessel, except those who would come in the stage* 
His getting off, gave him no concern; because he supposed that 
Knox could be caught again in some part of the country, if he 
attempted to go away. Whilst the witness was on shore, general 
Wilkinson procured a vessel in which Knox and others were seat 
to Richmond* He considered Knox under his authority, not as 
a military officer, but as deputy marshal* That he was commit- 
ted to his charge, as such, in virtue of a warrant of commitment 
issued by judge Hall. ' He did not knoytr the reason why the 
judge made such an order* That general Wilkinson never at- 
tempted to exercise any authority over Knox, on his passage* 
That the deputation was not of his oiim procuring. That he had 
received an order from the department of war, to leave the gar- 
rison at which he commanded, under the direction of some 
other person, and to attend to the orders of the attorney ge- 
neral* 

Question by colonel Burr* Had you no previous conversa- 
tion with general Wilkinson about this deputation? Answer: I 
had none*' I never heard nor had any conception of such a de- 
putation till it was mentioned by judge Hall* He gave to 
Serjeant Dunbaugh an order at New-Orleans to receive from 
prison and deliver to the commanding officer on board the 
United States' schooner Revenge, the body of James Knox, 
and he was accordingly conveyed on board* 

Question by Mr. Baker. Was not Dunbaugh a serjeant in 
the army, and did you not consider him acting as such under 
you? Answer: I should not have considered any citizen of 
New-Orleans bound to obey my order; I did not consider 
ssrjeant Dunbaugh farthsr bound than in compliance with his 



273 

promise* He waa called serjeant Dunbaugh, but I did not con- 
sider him under my authoritj as a military officer. I took no 
oath of office; I gave no bond to perform the duties of a de- 
puty-marshal; I do not know that I shall get any pay; I have 
no promise of any- General Wilkinson made his affidavit at 
his own quarters, before Mn Cenas. I do not recollect whom 
general Wilkinson consulted ; an attorney had been with him* 
I delivered to general Wilkinson the subpoenas received from 
the attorney-general of the United States, and among them 
one for myself) another for Mr* Graham. I always considered 
myself bound to obey the orders of general Wilkinson* I was 
bound before the deputation to obey him, and I continued so. 
I considered general Wilkinson as having the power of con- 
trolling myself, and every person belonging to the army and 
navy of the United States, on board the Revenge, if he chose 
to exercise that control; but I do not consider that he did ex- 
ercise such control. 

The subpoenas which I delivered to general Wilkinson came 
into my hands afterwards, but nothing passed between the gene- 
ral and myself on the subject, except that I stated to him the 
orders I had received, and the powf^r I possessed* My im- 
pression was, that general Wilkinson must have been privy, to 
the whole, and perhaps recommended that I should transact 
this business* I communicated to him what judge Hall had 
said; that an affidavit must be made of the materiality of Knox 
as a witness, before he could take any steps to compel his at- 
tendance* General Wilkinson knew that Kiu>x was put on 
board the Revenge unwillingly* 

On bur way to Virginia we stopped at the Havanna for 
fresh supplies of water and other necessaries* Some on board 
were sick ; they prevailed on the officers to call* While pre- 
paring to go on shore, a shot was fired from the Moro castle, 
and orders given to come on shore* They went on shore at the 
request of the sick persons on board made to general Wilkin- 
son and captain Read. They did not land until after four 
o'clock in the afternoon, and a little after dark they set sail 
again. Had good provisions, &c. on board* Heard captain 
Read direct the cook to let those people have their provisions 
regularly* To a question put by Mr* Burr's counsel, he an* 
swered, that general Wilkinson pointed out the witnesses on 
whom the subpoenas must be served* He, on several occasions, 
received advice and instructions from the counsel whom he 
consulted how to act in executing the business in which he waa 
engaged. 

Mr. Randolph* — Upon what authority were the forty dol- 
lars received from the military agent? Answer: The money re- 
ceived from the military agent was applied for, after several 

Vol. I. 2 M 



274 

applications from Knox; and general Wilkinson advised me to 
consult judge Hall, whether it were \egiA to demand money for 
him? And was told by the judge that it was regular to advance 
a reasonable sum; and was also told by the military agent, that 
general Wilkinson had advised him to advance that sum. 
The general advised me to consult the attorney-general there, 
or Mr. Duncan, and the general's own idea corresponded on 
the subject. 

Mr. Graham being sworn gave the following testimony. A 
short time after the arrival oi captain Gaines at New-Orleans^ 
I was told that he had subpoenas for witnesses, and one for my* 
self; that there was a public vessel that would carry us to 
Richmond. I then waited on general Wilkinson to know whe- 
ther I could be accommodated in that vessel? My health was 
bad at that time: general Wilkinson agreed that I should; and 
then said, that he understood that there were several witnesses 
in town, some of whom were unwilling, others unable to come 
round; and asked me if I knew any legal means or process, by 
which those who were unwilling could be compelled to come? 
I told him I did not know, but I supposed the federal judge 
could inform him. As there, was a misunderstanding between 
the general and the judge, I offered to ask the judge myself, wh^« 
ther there were such process ; and I did so. At this, or some 
subsequent time, general Wilkinson told me to ask the judge, 
whether there were any impropriety in advancing money to the 
witnesses, and to what amoupt? The judge said^ that so far 
from being improper, the witnesses had a right to demand it. 
The judge said, in answer to the other question, that if the 
witness refused to enter into recognisance, or to answer such 
questions as would satisfy him of the materiality or relevancy 
from the law, (which he showed me) he would be authorised 
to send such witness round under the care of the district mar- 
shal. He saw, a few days after, in an outer room at the judge's, 
Mr. Knox talking with Mr. Keene, a lawyer; some short time 
after, when these gentlemen came into the room, the judge 
asked Knox if he were then willing to answer questions, or en- 
ter into recognisance? He declined doing either. The judge 
had that clause of the law before him. He pointed it out to 
Mr. Keene, and a Mr. Fort^ who was in the same situation 
with 'Knox, and advised them to do one of the two; or he 
should be obliged to act rigidly towards them; that he was very 
unwilling to act against them; but it was his duty, and he must 
do it. The same gentleman had a curiosity to know what 
questions they intended to put to him, and then the printed in- 
terrogatories were shdwn to him". The judge asked Mr. Fort 
to answer these interrogatories, which he refused to do. The 
judge then sent for the marshal, and committed both of them. 



275 

In the afternoon captain Fort gave secnrity in 500 dollars ibr 
his appearance at Richmond, and was released. He understood 
captain Fort was going in the ship Amity to New-York, in or« 
der to come to Richmond; but as Fort told the witness^ he 
could not leave. New-Orleans without injury to his business, 
it was his own opinion, that he would not leave that place* 
Mr. Keene intimated to the judge, that he did not appear as 
an attorney ; but expressed some doubt of the correctness of 
the proceedings, and of the power of the judge to send Knox 
round. The ship^s stores were good, and the persons treated 
civilly and not restrained. They slept where he did. They 
called in at the Havanna on account of bad winds, and being 
chased close in by a British cruiser. Captain Read, who com- 
mands the vessel, Mr. Gaines, Mr. Smith and himself went 
on shore to procure fruit, &c. Remained there about three 
hours. His impression was, that if the gun had not been fired 
from the fort, they should not havie gone in. That part of the 
navy of the United States, which is at New-Orleans, and was 
formerly under the control of the government, and the officers 
about New-Orleans, when the countrv was considered to be in 
a state of danger, was put under the command of general 
Wilkinson. He saw no guard on his way to New-Orleans* I 
went, said Mr. Graham, partly by land, and partly by water. I 
went down the river with captain Fort, who said, that he was 
one of a party, whose object was to go against Mexico; of which 
declaration he made no secret. I do not know by what autho- 
rity Fort was brought before the judge, but judge Hall said 
he felt himself bound to act under the law. I advised Fort not 
to oppose the judge, who was a very determined man. Fort 
replied, that Mr. Alexander said, that the judge had no right 
to send him. The judge and Mr. Keene both requested him, 
to request Mr. Gaines to remove Knox out of the prisodTto the 
vessel. 

Ijieutenant Gaines, upon being called up again, said he is an 
officr r of the United States army, never consulted general 
Wilkinson about accepting the appointment of deputy-marshal. 
He understood Fort was included in the same affidavit with 
Knox. He sailed from New-Orleans in the Revenge; saw ge- 
neral Wilkinson exercise no kind of authority on the voyage. . 

Mr. Graham said, that general Wilkinson opposed their 
stopping at the Havanna for two reasons; first, that it would 
occasion delay, and secondly, that his enemies might charge it 
against him as an improper act. The gun was fired from the 
Moro castle. 

I understood that the judge had requested Mr. Gaines to 
accept the deputation. Gaines did not wish to act. He was 
urged by myself and others to accept it; and he did accept it, I 



276 

believe from motives of patriotism. General Wilkinson exer- 
cisedno control over the persons on board; and no restraint 
was used, except what has been mentioned with respect to the 
witness Mr. Xnox. 

Alter the testimony was closed^ a dispute arose between the 
counsel, which side should begin the argument^ both parties 
claiming the right. After some observations by gendemen qn 
both sides, it was determined, that the correct distinction was, 
that he who obtained a rule to show cause should close, and, of 
course, begin the argument. 

The court then adjourned till to-morrovr, eleven o'clock. 

Wednesday, June 24th, 1807. 
The court met according to adjournment. 

Mr. Graham was called by Mr. Mac Rae, and questioned, 
relative to the state of the public mind at New-Orleans, and 
whether great alarms were not excited by the conspiracy ? He 
answered, that he had not arrived at that place till the month of 
March, and at that time the public mind was much agitated. 

To a question put by colonel Burr, whether general Wilkin- 
son himself had not contributed to excite those alarms by his vio- 
lent measures i Mr. Hay objected as improper. Colonel Burr 
insisted on the propriety of his question. 

The court was of opinion, that the witness was only lx)und to 
answer such questions as directly applied to the subject before 
them. 

Mr. Graham said, that there was a con:iiderable portion of the 
people at New-Orleans, who believed, that there was another 
portion unfriendly to the government. He did not know the mea- 
sures pursued by the executive, at New-Orleans. He was then 
interrogated as to the post-offices being robbed of letters. He did 
not recollect that general Wilkinson particularly mformed hina 
how letters of information were received by him; only he ob* 
served, concerning a letter partly in cypher, that he had received 
it from a house at New-Orleans; [which Mr. Graham named; but 
h is not inserted, as he was not distinctly heard] that the practice 
of Opening letters, if it existed at all, had ceased, when he arrived 
at New-Orleans; that general Wilkinson showed him three or 
four letters. He did not know how thoseletters were taken from 
the post-office, but it was generally said at New-Orleans, that the 
post-masuer there had given him those letters. 

Colonel Burr asked him, whether a considerable number of 
letters, directed to himself, or to others, had not been taken from 
the post-office there? He answered, that he knew not; but there 
was an impression on his mind, that letters were improperly taken 



27T 

from the post-oi&ce; whether by general WiUcinson or not, he 
knew not* He rather thought not. 

Mr. Martin. — Did you not understand that general Wil- 
kinson had placed guards on the river, and on the roads, to stop 
travellers and passengers from passing ? 

Mr. Graham.— I did understand that he had placed guards at 
two points, near New-Orleans, for the purpose of arresting sus- 
pected characters. I had understood also, that certain persons 
had been seized. 

Mr. Martin. — Did general Wilkinson never tell you how he 
got those letters ? Mr. Graham. — He did not. 

Captain Murray was then called and sworn. 

Being interrogated by colonel Burr, he stated that he was 
stationed at Ville Grove, two miles above New-Orleans. His 
orders from governor Claiborne were to stop boats coming down 
the river, and examine them ; to examine papers, but break no 
seal : but that, from his orders he would have deemed it his duty 
to have transmitted letters addressed to suspicious persons to the 
executive at New-Orleans. 

Colonel Burr. — Would you have obeyed the governor, since, 
as an officer, you are strictly bound to obey general Wilkinson ? 

Captain Murray. — ^Yes, I should. The orders from governor 
Claiborne originated with, and always came through, general 
Wilkinson. , 

Mr. Edmund Randolph then addressed the court thus : 
May it please your honours : The motion which we so often at- 
tempted to bring forward, I hope, will now be submitted and freely 
Argued: the motion to attach general Wilkinson, for endeavouring 
to prevent the free course of testimony. The immediate object will 
be to call on him to answer interrogatories, whether improper 

Eractices have not been used by him : the ulterior object will 
e determined afterwards. I believe that, in cases of this 
kind, where strong suspicions exist, the attachment must go, be- 
cause it is in the power of the party charged to purge himself on 
oath. If he refuse, it arises from a consciousness of jiis own 
guilt. His innocence is first to be presumed, and every thing is 
in his own power. If he omit to clear himself, the court will 
take measures for enforcing obedience to the power and dignity 
of this tribunal. 

Give me leave to open this case as it now appears, from the 
testimony before the court. It no longer depends, as at first in- 
sinuated, on the evidence of James Knox, who has been censur- 
ed for enmity against general Wilkinson. It has been enlarged 






278 

and enforced by the testimony of tvro very respccttble gendemen^ 
brought forward by general Wilkinson himself. 

Sir, if we were to have the same command or range of per- 
sons that the counsel for the prosecution have, we should lay 
before you a history of this illegal and oppressive proceeding, far 
more detailed, and far more strong, than is yet in our power. I 
judge, that this would be our ability; when you hear so much 
from his own witnesses, who are supposed by him the best to 
understand the circumstances which can operate in his favour. 
And here give me leave to pay a tribute of applause (which I 
shall always be ready to avow) to the frankness and manliness 
of those gentlemen, whom he has introduced, in candidly and in- 
genuously stating all the circumstances known to them. That 
confidence which I had before in the evidence of James Knox is 
greatly strengthened and confirmed hy the strong and respecta* 
ble testimony of lieutenant Gaines and Mr. Graham. Mr. 
Gaines, a lieutenant in the army, was, by words, made a deputy 
marshal. Sir, I feel a repugnance at the idea. I feel a repug- 
nance at this germ of an alliance between the civil and military 
authority, when jthe civil wants not the aid of the military arm. 
I am not sufficiently versed in the policy of mixing offices of 
such opposite descriptions together, without necessity. I hope I 
shall never have occasion to be acquainted with the extraordi- 
nary' and dangerous policy of joining together such offices. 

That a man, owing obedience only to a superior military com- 
mander, is to be placed in a civil capacity, for the single purpose of 
catching and detaining unfortunate men, who may happen to be 
witnesses in a particular cause, is a dangerous innovation, and 
ought not to be tolerated. Sir, I do not pretend to recollect the 
puqjort of that paper, by the authority of which lieutenant 
Gaines acted as deputy marshal; but I understand, that its prin- 
cipal object was, to enable him to transport Mr. Knox froth 
New-Orleans to Richmond. It is immaterial, at this time and 
place, to enter into a specification of his power thus conferred, or 
attempted to be conferred. It is sufficient that a military man 
is created a deputy-marshal ; not for the general purposes of the 
office of marshal, but for the single purpose of proceeding and 
carrying by force, to Richmond, a man apprehended as a witness 
in New-Orleans. This outrage-, whether it be called civil or mi- 
litary, was committed after Mr. Knox was regularly summoned* 
The inference that I draw from this, is, that something of a mill* 
tary nature was intended in order to effect the object in view by 
compulsion. 

Can you believe, that there were so few men of integrity in 
New-Orleans, (I believe it abounds with such) that no man 
could be found by whom this business could have been executed, 
without this oppressive union of military power with civil aa- 



279 

thority i It cannot then be justified by the plea of necessity. It 
was as unnecessary as it was unprecedented and illegal; and whe« 
ther this appointment was suggested by the judge (who seems to 
have been infected with the mania es:cited by Wilkinson,) or 
whether it proceeded from Wilkinson himself, it was equally im« 
proper. He was appointed to an office without the possibility of 
employment: the sub]jcena had been served, and he had nothing 
to do as marshal. Every step taken, after the subpoena was served, 
was military, coercive and violent; nothing conformable to law. 
Consider the whole testimony, and say, once for all, whether it 
n^erenota contrivance to effect their favourite object, in pretend- 
ed observance, but in real evasion of the law? It is evident, that 
in truth and in law, Mr. Gaines was no deputy marshal. He 
was comnanded by the act of congress, to give bond and secu- 
rity before he entered on the duties of his office ; nay, more, he 
must qualify and be duly sworn in the same manner that the 
marshal himself is sworn; and till he does comply with these re- 
quisites, he has no more power as a marshal, than any man whom 
I now behold in this assembly. [Here Mr. Gaines being called for 
chat purpose,showed his deputation.] But it may ha said, that tliere 
was no occasion to give bond and security, because he was only 
appointed for the special purpose of removing a man from New- 
Orleans to Richmond. But before he could be a marshal at all, 
these requisites must be complied with. He would not otherwise 
be a marshal for any purpose* Without doing so, he was wholly 
vnauthorised, and intitled to no respect as an officer. He had no 
civil authority or character: he had no right to take upon him- 
self the office of sub-marshal. Mr. Gaines frankly and can- 
didly tells you, that he was not artsolved from military duty; but 
to comply with the wishes of the general, he was obliged, or found 
it convenient, to act thus towards James Knox; and he has 
said, that if commanded by the general, he would have put 
him in irons. The military genius prevailed- over the civil 
wherever it was seen. But he deemed it necessary to make use of 
the judge to execute his plan. This man, without any authority, 
by the orders of his superior officer, and to please him, goes to 
judge Hall; he has an interview with him; ^^ How am I to get this 
refractory man to Richmond?'*'* *^ Tou cannot do it without an affi* 
davit J^ ** How must this affidavit be procured?" The transaction 
furnishes the answer. It is procured by a communication through 
Mr. Gaines to general >Vilkinson; that this step was necessary 
for this particular purpose. The affidavit is made by general 
Wilkinson, knowing that its object was to effect the transportation 
of James Knox to Richmond. He himself caused his own affi- 
davit to be taken. He tells capuin Gaines, a military officer un- 
der his command, to transport him. He wilfully then contributed 
to do an act which he knew to be illegal. Do not let me be told, 



280 

that it was the act of the judge. The case will not be amended by 
that refuge; for the judge himself, as is manifested by all the cir- 
cumstances, was stimulated by Wilkinson, and greath^ tran- 
scended the limits of the law, to effect the performance of an act 
to which Wilkinson was not only contributing, but of which he 
was prime mover. He demanded bail and bond security that 
Knox would go twelve hundred miles. Sir, if conduct like this 
in a judge is to be tolerated, there is an end of all law and jus« 
tice. He could not but know, that there was no law authorising 
such an act of oppression. What, sir, shall he, from his own arbi- 
trary will, demand bond and security, in a large sum, of a man 
who is merely summoned to appear at a court as a witness, who 
is willing to attend, and whose failure to appear legally subjects 
him only to an attachment? Shall he cast a man thus summoned 
into gaol, because he cannot give such excessive security as he 
tyrannically demands? They wished to extort testimony from 
this man by intimidation and violtrnce; they required bail of him, 
though a stranger without property, in five or six thousand dol- 
lars, in a case where they had no right to require any security^ 
or to molest him at all. Was this man capable of giving bail in 
so excessive a sum? This judicial outrage of demanding bail, 
where none was demandable; of casting the man into prison, 
because this illegal condition was not, and could not be complied 
with, and this for the purpose of extorting evidence, is an of- 
fence of unusual enormity. What a mass of destruction to the 
rights and privileges of private citizens is here contrived be- 
tween the judge and general Wilkinson? The illegal design can- 
not be accomplished without an affidavit. Wilkmson voluntarily 
makes this affidavit, stating the materiality of the evidence of 
Knox. After it is made, by what means does it come into the 
hands of judge Hall? Who was the carrier of it? Not lieutenant 
Gaines, but general Wilkinson himself. And for what purpose? 
To enable them to transport James Knox to Richmond. And who 
is the executioner of this order? This transportation is to be ef- 
fected, not by a regular marshal or civil officer, but by an officer 
under his command, unless Knox gives bond and security, in 
a strange country, to an amount which he could not possibly com- 
mand; and moreover, this is to be executed on a man already in 
gaol for the sin of being a witness! Thus general Wilkinson has 
incorporated himself with all HalPs acts. 

But Wilkinson connects himself further in these proceedings, 
which are all illegal from beginning to end. Stimulated by Wil- 
kinson's oath, his agents put Knox in confinement; and Knox 
was removed by a miiitary order, from an officer under the com- 
mand of Wilkinson, on board of a vessel under the control of 
this commander in chief: so that the outrage against Knox was 
commenced by his imprisonment on shore, and consummated by 



281 

bis imprisonmeiit on sea; aad both contrived by Wilkinson. The 
aape commander in chief has drawn money from the military 
chest, for the purpose of aiding him in these unlawful transac- 
tions. Sir, you cannot view any part of this case, without 
viewing the same military features strongly marked: general 
Wilkinson as the principal actor, as a military character, and for 
military purposes* Wilkinson most assuredly considered himself 
as possessing the mbst positive power over this vessel; because 
he authorised captain Gaines to offer him a passage in the vessel; 
and how could he give such an authority, if Read was not under 
his command? Wilkinson was the effective commander of this 
vesseL Observe, sir, if you please, the order, which Gaines 
gives. It is a written order, in a military style, delivered to 
Serjeant Dimbaugh, commanding him to take this man into 
custody. He directs him not as a deputy marshal^ but as cap- 
tain Gaines, to take possession of Knox; and he addresses him 
not as an individual obliged to obey a marshal, but as Ser- 
jeant Dunbaugh, bound to obey him as his military supe- 
rior officer; and no permission is given to Knox to go on shore, 
but through Wilkinson* The spirit of Wilkinson appears through 
the whole of this business* The genius of Wilkinson is ap- 
parent in every stage of the transaction. I was at no loss at all, 
when I saw the letter of the attorney general directing so many 
subpoenas to be put into Wilkinson's hands, to perceive the object. 
What authority could the attorney general confer on Wilkinson ? 
I had, no hesitation, on reading this letter, to conclude that the 
intention was, to enable him to effect by force, the removal of 
such persons as he could not persuade to come voluntarily. I re- 
fer to the fact; it is acknowledged and cannot be denied* [Here 
Mr* Hay interrupted him: he insisted that die letter should be 
read, and that it would show, that Mr* Randolph was incorrect.] 
Mr* Randolph waived the reading of the letter; but appealed to 
the facts, and insisted that his inference was justified by the tes- 
timony. He then proceeded. Is it not singular, that subpoenas 
in a civil case, should be confided to the military commander in 
chief? Did it not seem to tell him, that he was to use these 
subpoenas with some degree of authority, and did he not at least 
arrogate that authority to himself? Why did general Wilkinson 
mention to Mr. Gaines the necessity of summoning Mr. Knox, 
in recommending to him to find out who were witnesses ? Who, 
I again ask, carried the affidavit of Wilkinson to judge Hall ? 
Mr. Gaines has stated that he did not; who then carried it but 
general Wilkinson himself? Does not this still go to show, that 
there was not the minutest thing that general Wilkinson would 
omit for this purpose ? There was a military temper, a military 
spirit displayed by general Wilkinson, throughout the whole 
transaction. Why did he consult an attorney? Washeainarshal? 
Vol. I* 2 N 



282 

Was military money put into his hands to employ a lawyer ? 
No, sir, but because he viewed the subject in a military form* 
Gaines tells us that Wilkinson must have known that Ktiox was 
carried on board unwillingly; yet, notwithstanding he knew 
this, and that Knox was anxious to come oii shore, he suflfers 
him to remain in the pinnace of a ship — ^in the hold ; perhaps 
to mess with degraded people : torn from his family and his pri- 
vate concerns, without the common comforts usually prepared 
for a sea voyage ; an exile from his country, without money, 
without friends. Mr. Gaines states, that he, Wilkinson, had ob- 
served to him,that there were some unwilling witnesses, (such as 
he must coerce by military rigour) ; and Mr. Graham tells you, 
that he consulted him on the means of sending forward unwil- 
ling witnesses. See, then, the solicitude of Mr. Wilkinson, 
through the whole of this business! He began; he consum- 
mated every thing. Dunbaugh was applied to, for the liberty 
of Knox, and it was refused. But Wilkinson took his parol of 
honour, from him at Hampton: none but Wilkinson could give 
him liberty. We have seen him in the character of a military 
tyrant. We shall now find him using the blandishments of a 
courtier. He is particularly complaisant and friendly; oifering 
him money, and any services in his power, in order to relieve 
his wants. At one time he asks him, ^^ Are you not afraid of 
seeing me, after what has happened to many ?" At another, he 
asks him in a familiar way, if he were not a free mason; and 
thus profaned that institution, by attempting to impose on him 
the seal of secrecy. Terror was used to frighten him; and when 
he was found too firm and stubborn, cajoling and complacency 
were used. The means of operation were changed as he found 
it expedient. It is immaterial in what order these things took 
place. It is certain that they all took place. Various passions 
played in his breast; sonretimes softness, sometimes severity. 
Sir, I beg to deduce from these facts, this conclusion: that 
general Wilkinson caused the arrest and imprisonment of Mr. 
Knox; that Wilkinson executed it; and that it was done for 
the purpose of compelling Knox to give testimony. Though 
he was privileged as a witness, Wilkinson, by his own authori- 
ty, had him again imprisoned on board the vessel; and this, 
also, for the same purpose of compelling him to give testimony, 
and of interrupting the free course of evidence. These are the 
principal facts upon which an attachment ought to issue against 
general Wilkinson. Sir, I will not stop to look at the insinua- 
tions against Knox. He had been summoned by the United 
States, and was waiting to arrange his private affairs, to enable 
him to depart for this place. The account which Knox has 
given, is just, candid, and unexceptionable; and shows that he 
was very much disposed to give his evidence. It is truly a hard 



283 

case, that he should be solicited by the United States to come 
as a witness, and when he does come, that his character should 
be assailed as participating of something criminal. Facts, then, 
are fixed as to general Wilkinson. But it may be asked, what 
motives general Wilkinson could have for his conduct f It was 
said the other day* that he was the phot of the prosecution. 
The prosecution was not hazarded before his arrival; not a 
single witness was sent to the grand jury till he came. The 
grand jury had to wait several weeks for his arrival. We have 
already had occasion to notice the stake which general Wil- 
kinson had in the issue of this prosecution. Sir, the truth is, 
and it cannot be. concealed, that the names of Wilkinson and 
Burr are antipodes to each other by the act of Wilkinson him- 
self. Wilkinson declares, and the fact fs, that he never will ret- 
gain his meridian brightness, unless he can throw Mr. Burr 
into darkness. It is his duty to take care, that like some 
mock god, he fall down from his imaginary glory, tum- 
bling among ruins, and into a chaos of rubbish, which he him- 
self has created. 

Thus we have established what Wilkinson has done, and 
what were his motives. Let me now show, that these facts do 
amount to a contempt of the court. From the authorities which 
I will read, it will appear, that no force or violence should 
^ver be unnecessarily used, in making arrests ; and of course, 
every species of unnecessary force, in compelling witnesses to 
attend to give depositions, or in executing any other process, 
amount to a contempt of the court. Hawkins^ in book 2. sec. 2. 
lays down this general principle, that ^^ it seems clear from 
the general reason of the. law, that all courts of cecord have a 
discretionary power over all abuses by their own officers, in 
the administration or execution of justice." And in sec. 3. he 
lays .down these general principles, that ^^ it is every day's 
practice to grant attachments for misdemeanors of this kind; 
as, for using needless forccy violence and terror^ in making an 
arrest; or by breaking open doors, where, by law, it is not jus^ 
tifiable, and there is no plausible excuse for doing it ; or treat- 
ing the persons arrested, basely and inhumanly, or keeping 
them in custody, till th^y pay money ; or making an arrest 
without due authority ^ And in the twelfth section of the same • 
book, after having spoken of punishing by attachment, the mis- 
conduct of attorneys, he says : ^^ Where the court may proceed 
in the manner above mentioned, against other officers of the 
court, there being scarce any thing of this kind to be met with 
in the books; I shall onlv observe, that it seems clear from the 
general reason of the law^ which gives all courts of record a 
kind of discretionary power in the government of their own 
officers, that any such court may proceed in 9uch manner ^ [He is 



-t 



284 

speaking of the process of attachment] against any such officer^ 
not only for refusing to execute its commands^ or for executing 
them irregularly^ remissly ,, or oppressively ;hxyt also for all kinds 
of oppression or injustice done by them in the execution of their 
offices^ or by colour ofthem*^^ And in section 41. of same book^ 
he says, that ** making use of the process of the court in a 
vexatious manner" — and, in section 42. that ^^ using it to serve 
the purpose of oppression or injustice, are both punishable by 
an attachment." Here, then, is a universal principle, that for 
all kinds of oppression or injustice^ done by the officers of courts 
of justice, either in the actual execution of their offices, or by 
colour ofthem^ they may be proceeded against by attachment* 
If we ao not produce a^case in point, it is for the reason men* 
tioned by Hawkins, that there is scarce any thing of this kind 
to be met with in the books, and therefore the general princi- 
pie must be resorted to. Where the public necessity, and the 
cause of justice require, that a party should be arrested by an 
officer, the officer must use no violence or terror, in making the 
arrest; he must be guilty of no act of oppression in any case* 
If no violence or oppression ought to be used, where an arrest is 
authorised, how much more must the law discountenance such 
violence and oppression, towards those who are not liable to be 
arrested? The oppression practised upon Mr. Knox, in this 
case, has been by colour of the process of this court ; and those 
guilty of it ought, on the principled here laid down, to be pu- 
nished for it. This is a more violent case, than any mentioned 
by this author* What would Hawkins have said to this case, 
where we see a man, who was regularly summoned as a wit- 
ness, to attend a court of justice, seized at New-Orleans, up- 
on the affidavit of a military officer, dragged before a person, 
who is called a magistrate, for the express purpose of being 
held to bail; required by this magistrate to give bail, for his ap- 
pearance next day, in an enormous sum, in a place where he is 
unknown ; then thrown into gaol and confined for three days, in 
a sultty climate, among negroes and felons ; then taken out by a 
military authority, placed under a military guard, and by a man, 
who, though a military officer, had the name of a deputy mar- 
shal conferred on him, for the purpose of executing this tyran- 
nical act, and that gentleman, himself, acting in this double capa- 
city under the authority of general Wilkinson; then forced on 
board a vessel, and continued under restraint, till he gets with- 
in a few miles of Richmond! and allthisy without so much as 
the pretence of any cause or crime, and under the control of 
Wilkinson? I ask, what would Hawkins, or other eminent £ng- 
glish writers, have said of a case of such flagrant oppression f Is 
not this the use of needless force, violence, and terror? Was 
not this an act of inhuman treatment to Knox ? Was not the 



c 



285 

process of this court abused, for the purpose of oppression and 
injustice? Was not vexation practised under colour of this pro- 
cess f And do not the offences committed, come completely 
within the definitions of Hawkins, as punishable by attach- 
ment? Is not this arbitrary and illegal arrest, contrary to all 
practice and experience, in cases of witnesses in that country? 
There has been no example, in this country, of confining a man 
for the purpose of compelling him to give testimony. He only 
enters into a recognisance to appear in court to give testimony* 
No compulsion or influence is to be exercised over a witness; ' 
it is forbidden by the law. All temptation to perjury is taken 
away, as neither threats nor promises, rewards nor punish- 
ments are permitted by law. In the examination of a witness, 
no force is to be used. On the contrary, when a witness has 
been summoned, and has not failed to attend, there is no pre- 
sumption or anticipation, that he will not obey the summons ; 
there is, consequendy, no compulsion to be exercised on him. 
Voluntary affidavits cannot be restrained. They are not free 
from exception, because they are liable to be abused; and are 
not legal evidence on a regular trial, because taken ex parte i 
but many people.will go before a magistrate of their own accord, 
and make such affidavits. No person can prevent it. But when 
these ex parte affidavits are spoken of» it is always meant, that 
they are voluntary* A. forced affidavit never was heard of before. 
Let us look at the power which the marshal has on such occa- 
sions. The 33d section of the judicial act points it out.— -1 voL 
Laws of the United States^ p. 73: ^ If such commitment of the 
^^ offender, or the witnesses, shall be in a district other than that 
^^ in which the offence is to be tried, it shall be the duty of the 
^^ judge of that district where the delinquent is imprisoned, 
^ seasonably to issue, and of the marshal of the same district to 
" execute, a warrant for the removal of the offender, and the wit- 
*^ nesses or either of them, as the case may be, to the district 
** where the trial is to be had.^' What is the power which the ma- 
gistrate has by this clause? It is unnecessary to inquire into the 
extent of it. He had no such power as is here contended for. 
The party accused was not committed by him^ nor brought be" 
fore him^ nor imprisoned in his district. He had, therefore, no 
right at all to confine the witness for the purpose of transporting 
him tothe district where the trial was to be had: and yet, that was 
done by Mr* Hall, notwithstanding the plain and explicit terms 
of the law, that the duty of ^* the judge of the district, where the 
delinquent is imprisoned^ is to issue a warrant, and of the mar- 
shal of the same district to execute it^ for the removal," &c. This 
judge Hall well knew, that the accused was not imprisoned m 
his district; that he had not committed him; and that, there- 
fore, under this law, he had no right to issue such a warrant; 



286 

and as he could not lawfully grants so the marshal could not 
lawfully execute such a warrant. The act was, therefore, unlaV* 
fill, and every person knowingly and actively concerned in it, or 
otherwise contributing to it, was participating in the offence, 
and guilty of a contempt of the court* 

I am astonished at the boldness of this judge, in supporting 
the arbitrary military order of the general ; for such it assur- 
edly was. Affidavits, sir, they called for as gluttons: their 

, greediness is never to be satisfied. But why did they ask for 
them? What was their object in so doing? Was it not to entan* 
gle their prisoner, by compelling him to make an affidavit, 
which he could not afterwards retract? The witness once com- 
mitted by his oath, struggles to adhere to what he has sworn 
to. The printed interrogatories pin him down to a particular 
point. Whatever may be his wishes or feelings, he must adhere 
to them. Gre^t strength and presence of mind, are not always 
to be expected in a person, placed as Mr. Knox was at New- 

. Orleans. That strength of mind, which will adhere to the exact 
truth under every pressure and difficulty, is not to be found in 
every man. The witness is not to be always at hand to explain 
his affidavit. Mr. Knox was in a strange country friendless, in 
want of every thing, and subject to the military despotism of 
general Wilkinson. From his situation it might be supposed, 
that the affidavit which he would give would be different from 
what it would be, if given in a court of justice, where law and 
•rder are preserved, and testimony is not extorted at the 
point of the bayonet. This was the object of the printed inter- 
rogatories; and of obtaining the affidavit of Mr. Knox: for they 
calculated, that a regard for his own reputation, would prevent 
him from contradicting any fact to which he had previously 
deposed. He might hesitate between the love of truth, and a 
regard for his character. He might gready prefer a candid de- 
tail of facts; when by showing him his former testimony, and 
reminding him that want of uniformity in his evidence would 
expose him to, public contempt, his real regard to the truth 
would be shaken, so as to make him confirm his former ex- 
torted statement. Sir, there is not a more dangerous power, 
that can be exercised on the part of the government, than that 
of forcing a man to give an affidavit taken ex parte ^ by a man 
who will not be careful ,to state facts as intended by the wit- 
ness, but as tending to establish the object, or to favour the 
views of those who take it. He may wish to retract : but when 
his deposition is brought before his eyes, he will be unable. Sir, 
what must be the force of that man's mind, who, unskilled in 
©ourts, unskilled in the world, can give a correct statethent of 
facts,when confronted in court with his declarations before com- 
mitted to paper, and can firmly explain and give a narration dif- 



287 

ferent from it? Who can be Bafe,if proceedings like these should 
be tolerated? We are told, that the bill of rights gives to the accused 
the right of beingconfronted with his accusers and witnesses. That 
privilege would be evaded in a case like this. The witness would 
oe unequally matched in meeting the terrors of a slanderous 
world. Yes, he would be terrified by the censures of an inconsi- 
derate and defamatory world. As long as the law could not reach 
him,he would not hesitate between adhering to his former depo- 
sition, and what he would know secretly within himself to be 
correct. I trust, that whatever may be the fate of this motion, 
you will not suiFer such encroachment on the privileges of wit- 
nesses ; that you will not suiFer them to be intimidated, and over- 
awed by art and dexterity, from. telling the real truth; or com- 
pelled to give colouring to circumstances contrary to their 
meaning. Sir, we cannot do better than to adopt in the law, the 
principle in the Lord's prayer: ^^Lead us not into temptation." 
This improper mode, of extorting ex parte testimony, will cause 
a man to have a conflict in his own mind, between the truth of 
which Ke is conscious, and what he msty have hastily been made 
to declare. We contend, that neither the proceedings in a cause, 
nor the witness should be interfered with, and that to do either 
amounts to a contempt of the court. In support of these prin* 
ciples- we adduce several respectable authorities. — Sth Viner^s 
Abridgment^ p> 444, 445, 446. In ^d Atkin^ 469. it was deter- 
mined to be a contempt of the court, to publish a libel against 
a party, or an advertisement reflecting on the witnesses in a 
cause. And it was observed by that great chancellor. Lord 
Hardwicke, ^^That nothing was more incumbent on courts of 
^* justice, than to preserve their proceedings from being misre- 
*^ presented; that nothing was of more pernicious consequence, 
^^ than to prejudice the minds of the public against persons con- 
^^ cemed as parties in a cause before it was finally heard." It was 
also observed by him, that ^^to abuse the parties in a cause, or to 
^^ prejudice mankind concerning it before it was heard, was a 
*'^ contempt of the court as well as to scandalize the court itself." 
And in 2d Vezey^ 520. it was adjudged, that to publish an ad- 
vertisement concerning proceedings in court was a contempt of 
the court. In the case here referred to, a man was committed for 
offering 500/. to prove a fact, though the court had already decid- 
ed the point. The principle is the same in the case now before the 
court, as in those cases. Why is the publication of a libel against 
a party in a cause depending in a court of justice, or of an ad*- 
vertisement reflecting on the witnesses, deemed a contempt of 
the court? Why are all publications to inflame or prejudice the 
public mind prohibited? Because they tend to prejudice the 
public mind against the parties, or the proceedings in the cause; 
because they obstruct the free administration of justice ; because 



«. 



% 

4 



288 

it may Influence the minds of the jury^ who may have to try the 
cause, and, consequently, may occasion an unjust determinar 
tion. Why are such rules of caution adopted in taking evidence, 
but to prevent false swearing? Why are needless force and vix>- 
lence in making arrests forbidden^ and why is force towards a 
witness censured by the law? Because, in these cases, the mind 
is not left free, though it ought to be free. Compare these 
cases with the severity practised in this case. The minds 
of the public may not be prejudiced, but the mind of the 
witness was not free: he was under temptation to adhere to 
what he had said. He may, indeed, not have been under ter- 
ror; perhaps the firmness of his mind may have supported him, 
and prevented him from being alarmed: but terror was rigidly 
employed by military authority. He was arrested and thrown 
by a military officer into gaol ; was escorted by a military officer ; 
forced on board a military vessel, under the command of the 
same military officer, and there for a long time restrained by the 
same military officer. If there can be a case of greater enor- 
mity than this, it has eludeid my search. If there were nothing 
in this case more than the improper and unjust effort to obtain 
the affidavit of Mr. Knox to commit him, it would be sufficient 
to constitute a contempt of the court, and would be punishable 
by attachment: but it is rendered further criminal by the force 
used to obtain it. The liberty of the witness was invaded. A 
free citizen of the United States is dragged by corporeal force 
and thrown into gaol, for the crime of being a witness; and 
this within the knowledge, and at the instigation of general 
Wilkinson. I hope I shall not be told, that there was an associ- 
ation with certain conspiracies, which rendered these rigorous 
measures necessary and proper. There was no connexion 
proved between Knox and any conspiracies. Why insidiously 
attack a man as a witness, who is to be denounced as a crimi« 
naU I hope that no man, who is not guilty of a crime, will be 
caught and cooped as a gaol-bird, and compelled to receive 
crumbs of bread through the grate of a prison, at the will of a 
military commander, especially when I recollect what is to be 
superadded : that he is to be transported twelve or fifteen hun- 
dred miles, not for trial or suspicion of an oiFence, but for the 
iniquity of being supposed to be a witness, accidentally ac« 
quainted with facts. What are to be the consequences, if such 
doctrines as these are to be tolerated? That it is only in the 
breast of a military commander to transport any, the most 
peaceable citizen, if he be only supposed to be a witness, on 
boardof a vessel, under militaiy restraint, at any season of the 
year, however inclement, and any distance, without a crime, or 
the suspicion of a crime ? We, who have so often seen and read 
the declaration of independence, must feel indignation at the 



». 



,289 

oppression practised upon Mr. Knox. This is one of the acts 
of oppression, we are told, that the British government had 
committed against us. ^* Transporting us beyond seas, to be 
tried for pretended oifences," is stated in the declaration of in- 
dependence, as one of the principal acts of misrule, which rous- 
ed us to resistance, and to declare ourselves independent. To 
be free from such aggression on our rights was a fundamental 
part of the basis of our independence. This was not a mere ebul- 
lition of patriotism for the purpose of exciting popular phrensy; 
nor one of those artifices used to increase the public discontent, ' 
or to swell the catalogue of the crimes committed by Great 
Britain. No, sir, this particular injury alleged in th^ decla- 
ration of independence was a real, an enoi^ous grievance^ 
which was execrated by the wisest men of our country. Exemp- 
tion from it was founded in human rights, and was one of those 
blessings of liberty to which we had by nature a right, and which 
having secured, we ought ever to be jealous of preserving. 
This invaluable privilege we claim as citizens. It is a demand 
which we make of the government for protection, and it must 
be guarded by the court, unless some of those doctrines, which 
we have long reprobated in a military despotism, shall be sanc- 
tioned to destroy our rights. Even then^ when criminab were 
transported, the innocent were left unmolested. What shall we 
say to this aggravated case, when the gentlemen themselves 
must admit, that this man is innocent? 

I will not enter into those feelings that mig^t be described, 
but I feel horror when I reflect that an individual, innocent and 
inoffensive, engaged in locating lands for the subsistence of 
himself and family, should be stopped from completing his lau- 
dable undertaking, and taken up far from hishome^his family and 
friends, and transported as a witness twelve hundred miles, to 
the injury and derangement of his views and domestic con- 
cerns. . I hope, sir, that transportation will be reserved for the 
guilty. If these things be done and tolerated in the green tree, 
what shall not be tolerated in the old? What is to be the effect 
of a precedent like this? Who can foresee the consequences if 
it be not repressed? This particular case may lead to dreadful 
events, and by artificial means become a tempest. But re- 
member, sir, you have foresight, and can judge of the prac- 
tical effects of injurious precedents; and if the unjust proceed- 
ings on this case be not severely censured and punished, though 
we may not suffer, our children will repent of it. But this act 
is said to have been extrarterritorial, and that Wilkinson was not 
engaged in the whole of it ; and therefore it is pretended without 
the control of the court. This is true, as far as Mr. Hall is con- 
cerned* We cannot operate on him here. If it were so at the be- 
ginning, see how it has passed from New-Orleans to Richmond. 

Vol. I. 20 



290 

Wilkinson was engaged in it at the beginning, at the second stage, 
and at James* river itself. The spirit of Wilkinson pervades the 
whole. He is every where seen, not merely as .an integral part, 
but as the first cause of the whole. Is this court to suiFer its 
witnesses to be abused without its jurisdiction? But I say, that 
it was not without the limits of the jurisdiction of this court. 
There must be a power in every court, to procure the attend- 
ance of witnesses; and wherever that power extends, the wit- 
nesses are protected by it; particularly if the man who has 
abused them, be present before the court. General Wilkinson 
is present and may be animadverted on. I will not pretend to 
say, what effect this may have on his character, nor can it af- 
fect the right to examine into his conduct; because he ought to 
have preconceived the consequences before he committed the 
acts. The man who interposes the sword, in support of the 
civil authority, ought to have the patriotism to acquiesce under 
the consequences, let them h6 what they may. The prying 
world may ask, whether Wilkinson is to be supported in such 
outrages? In practising on the necessities, fears, and terrors of 
the witnesses? Whether he is to be supported in the duress 
which prevailed on land and water? and in (what will1>e more 
fully discussed hereafter) the improper if not felonious taking 
of letters from post-offices ? These questions will be asked after 
the testimony is known. The answers will be awful to him* 
The consequences of his violent and outrageous conduct must 
be awful to hinu He will find himself devested of his military 
array and parade with which he used to be surroimdsd at New- 
Orleans, to stand here like a common individual. He must then 
answer those questions and account for his invasions of the rights 
of his fellow citieens. The magnitude of the offence calls for ex- 
emplary punishment. I insist on the motion that I have made^ 
that an attachment do issue ajg;ainst general Wilkinson, for the 
various reasons I have stated. He is here himself, and if he 
be innocent, he can smswer and purge himself on oath, of the 
guilt imputed to him ; and if guilty of abuse of power, let him be 
punished in the proper manner« 

Mr. Martin said, that he would make a few additional ob- 
servations; that he would not enter into a general detail of the 
subject theriy but would adduce some additional authorities to 
show, that the acts at New-Orleans were illegal, and that the 
magistrate had no authority for what he did. If it were pretended 
that the act of congress justified it, gentlemen were much mis* 
' taken. [He then read Graydan's Digest of the Laws U. SJ] The 
33d section of the judicial act, must be that on which they re- 
lied; that witnesses examined under the circumstances mere 
stated may be cemmitted, but that this law extended only to liie 



291 

magistrate before whom the arrested person was brought to be 
examined; that it says^ ^^ it shall be the duty of the judge of that 
district where .the delinquent is imprisoned, to issue a warrant, 
&c.'* that Hall did not commit colonel Burr, who was seiaed and 
transported more than a thousand miles, was brought hither, ex- 
amined here, and recognised to appear this term; that the magis- 
trate had no power to examine the witnesses at all, except where 
the accused person was brought before him to be examined* 
That 2 HqU?8 Pleas of the Crorwn^ p. 51, and 285., and Mac 
Nallifj 314. prove that Hall had not this authority. Those au- 
thorities state, that where a crime is committed in the county of 
Bm and the criminal is arrested in the county of C, the magistrate 
before whom he is brought to be examined in the county of C. 
has really no original jurisdiction over him, nor can his exami- 
nation be read on his trial, though from the necessity of the 
case, and to preserve the peace, he has a consequential jurisdic- 
tion; and can examine and commit him in order to be sent to the 
proper county. But that here, as the party accused was not brought 
before HaUy he had no power whatever. He had neither original 
nor consequential jurisdiction. Every thing he did at New-Or- 
leans, at the request of general Wilkinson, was perfectly iUegal 
and extrajudicial 'y but that perhaps it might be said, that state- 
necessity would justify what the law did not authorise. On this 
subject he referred the court to what was s^d by one of the 
most celebrated judicial chamcters of the British jinliciary, lord 
Cambden, 3 State Trials^ 320. He referred also to 1 State Trials^ 
vol. 7. 180. 

Mr. Hay. — He is anticipating arguments which we shall ne- 
ver use. ^ 

Mr. Martin quoted 3 State Trials^ 8th article of the im- 
peachment of Sir Robert Beckley. 1 voL 709, 710, 711* 716, 
717. 2 State Trials^ 306. voL 12. 7 State Trialsy 306. 

Mr. Wirt* — I shsdl not trouble you to take notes. The short 
question is, whether general Wilkinson be guilty of a contempt, 
and ought to be attached? We proposed that the court should 
decide at once without any observations on either side; but gen- 
tlemen insisted on an argument, and they have had it. Our im- 
pressions are, that the evidence is perfecdy clear; and we are 
willing to submit the question on the argument already heard* 

Mr. Burr's counsel insisted to speak further. 

Mr. WxcKHAM.-— All questions are very plain to counsel on 
their own side. They may be mistaken. Thoupi it may not be per- 
fectly clear on our side; yet I think I can convince the court, that 
on an examination of the law^and the facts, the attachment ougtit 
to is^e* 



292 

Mr. Mac Rae,-— I regret that so much of the time of the 
court is to be consumed on every point* I confess that my hopes 
were, that our offer, to submit the case without discussion, would 
have been agreed to ; but as they insist on an argument, they 
must be gratified. I hope that I may be permitted to say, that 
in the whole course of my short practice, I never read or heard 
of a case similar to that now before the court. The motion as 
to its foundation is ^^ sui generis !^^ No motiou of a similar 
character or nature can be found in the annals pf forensic pro- 
ceedings, either in England or in this country. If there be any re- 
cord of any such motion, I have been unable to find it, after the 
most industrious researches. Mr. Randolph, sensible of this,, 
thought proper to read a passage from Zd Hawkins^ to show, 
that such cases might occur, for which no precedent could be 
found; and that in such cases, the court was to decide ^^ ac* 
coPding to the general reason of the law*'* 

It was deemed proper to state, as some kind of an apology for the 
unmerited Attack on general Wilkinson, that no precedent could 
be found to justify this application to the court. Before I shall 
reply to the animadversions on his character, I beg leave to ob- 
serve, that general Wilkinson is doubly protected by the law of 
the land from any danger from this motion, even admitting that 
the charges against him are true, which is utterly denied. The 
charge against him is, that he has obstructed the administration 
of justice in the cause of the prisoner. He is said to have ob- 
structed the administration of it, by two distinct acts: First, by 
extorting testimony from Knox, on this subject: Secondly, by 
forcibly bringing him round from New-Orleans to this city, to give 
evidence here. If these charges were both true, they would not 
warrant the motion to attach general Wilkinson. I shall by and 
Ay, prove them to be untrue. But suppose them, fbr the sake of 
argument, to be true. If the offence have been committed at all, 
according to the allegations of those who have made this motion, 
it has been committed at New-Orleans. For any real offence 
committed at New-Orleans, a person is not answerable before 
this court; because that place is not within its jurisdiction. I 
should deem it an insult to this court to dwell on such a topic, or 
to use much argument to prove, that an offence, committed out 
of the jurisdiction of this court, cannot be judicially noticed by 
it. But suppose the offence to be done within the limits of Vir- 
ginia, and of course within the jurisdiction of this court. Gene- 
ral Wilkinson, even in that event, would not be answerable in 
this form ; because he appears as a witness before the court, in 
obedience to its subpoena, and a witness is privileged from arrests: 
he cannot be arrested for any act of this description. 

In die Ut voL of the Laws of the United States^ p. 74, it is 
enacted, " That the laws of the several states, except where the 
constitution, treaties dr statutes of the United States, shall othei^ 



293 

wise require or provide, shall be regarded as rules of decision, 
in trials at common law, in the courts of the United States, in cases 
where they apply." There is no particular direction given in the 
laws of the United States, as to the privileges of witnesses; of 
course, whenever they come in question, it will be proper to in- 
quire in the acts of the legislature of Virginia, how extensive 
dieir privileges are. In the revised code of the Lctws of this state^ 
p, 278, it is enacted, *^ That witnesses shall be privileged from 
arrests, in all cases except treason^ felony^ and breaches of the 
peace^ during their attendance." The only cases in which a per- 
son who is a witness can be arrested, are treason, felony, and 
breaches of the peace. Here we might safely rest his defence; 
but every step he takes, as a soldier and patriot, he travels on so- 
lid ground. I trust that this court will say, that instead of ob- 
structing the administration of justice, or deserving the smallest 
censure, for what he has done in this case, he has deserved well 
of his country, and merits the highest encomium. When he 
looks back to these transactions, and the part he acted, as well 
towards Knox as to others, he will see no cause to blame him- 
self for any thing he has done in public or private ; but will feel 
diat pride which conscious innocence never fails to inspire* He 
has risked his fortune, his life, and his fame, to save his country 
from audacious treason, which but for him, might have ended in 
the subversion of the government, and destructiojti of the liber- 
ties of his country. I trust, and he expects, that his countiy and 
this court will examine and appreciate his conduct, and wiU be- 
stow on him that reward of praise, which his praiseworthy 
deeds demand. 

Sir, Mr. Randolph let out an important secret. The gentle- 
man finding that there is no evidence X6 bear them out in their 
illiberal attack on the character of general Wilkinson, intimates, 
that they will resort for testimony against him, to the very man 
who is thus attacked ; that they will call on him to answer their 
interrogatories. Is this correct? Has Mr. Randolph's extensive 
reading taught him, that, instead of proving general Wilkinson's 
guilt, he shall be condemned out of his own mouth? 

Here Mr. Wickham interrupted Mr. Mac Rae,and informed 
him, that he had misunderstood Mr. Randolph, (who was then 
absent), who had taken the course pointed out by the court, and 
the chief justice explained it thus: that the attachment must 
go, if the testimony were sufficient to prove that it ought to be 
granted; and then the defendant must answer interrogatories ; 
but that without sufficient evidence, an attachment could not be 
granted in any case. 

Mr. Mac Ra£»— -I have examined authorities, and under- 
stand the regular course; btit I understood Mr. Randolph to 



294 

have said, that if the evidence amounted only to suspicion, gene« 
ral Wilkinson must be called on as a witness against himself, 
which would be illegal and a violation of a sacred right* Here 
Mr. Mac Rae referred to 1st Dallas^s Reports^ 328, in the case 
of the Commonwealth v. Oswald, and read part of the argument 
of the counsel, and the opinion of the court, approving thereof; 
and contended that the contempt must be proved by disinterested 
witnesses; and that this proof must be clear and full; after which 
proof, the defendant has the privilege of purging himself from 
the imputed oflFence. He then proceeded: The question then is, 
has he committed this offence or not? Mr. Randolph says, that 
not merely the evidence of Knox proves this contempt, but that 
two witnesses, whom we have ourselves improvidendy introduced, 
have confirmed it. This conclusion is wholly unsupported by 
evidence. Destitute of proof from beginning to end, the gentle- 
man has been reduced to the hard and cruel necessity of heaping 
conjecture on conjecture, till he has conjectured that this court 
will, without a particle of proof, conjecture and grant their mo* 
tion. Though I shall be followed by gentlemen of unexampled 
talents and excellent memories, I venture to ^rm, that they will 
not be able to show, that this motion ought to be granted, or 
even to excite doubts. I must pass over some of that gentle- 
man's conjectures, without feeling any kind of disrespect for him, 
(I am disposed to treat him and every other gendeman to whom 
I am opposed with respect). I feel myself compelled to do so, 
because they do not appear to me to merit a serious refutation. 
I shall, however, nouce a few of them. First, he states a very 
important circumstance which he trusts will be conclusive with 
the court; that a military man was made a deputy-marshal; and 
that this was the result of a concert between judge Hall and 
general Wilkinson: that they were secredy plotting together to 
make it appear a civil, when in fact, it was a military power. 
When Mr. Randolph formed this conjecture, he unfortunately 
forgot, that when he and Mr. Graham were/leliberating on the 
way of bringing reluctant witnesses to this place, to give testi- 
mony in support of the violated laws, he was only doing what 
he was bound to perform in duty as an honest man. That he 
desifed to compel their attendance by legal means only; that he 
consulted Mr. Craham how to proceed; that it was suggested 
to him by Mr. Graham, that it would be proper to see judge 
Hall, and consult him; and that Mr. Graham, knowing that there 
was a misunderstanding between judge Hall and general Wil- 
kinson, offered to consult the judge himself, and did so. What 
then becomes of the concert which is urged to have taken place 
between them? For it is said, that all were to be directed by 
general Wilkinson. Did Mr. Randolph recollect this? Or did he 
suppose that the court would attend to his statement of seatt 



295 

plots and contrivances without proof to support it? You find that 
the fact is, that there was no concert between thetn; that they 
were separated by a previous misunderstanding; and^ that judge 
Hall acted upon the application of Mr. Graham. Away then 
goes this conjecture; in truth, so all must go; for he has no proof 
to support any. But ^^ a military man was made a marshal.'' 
What of that? Who made him so? You recollect the interroga- 
tory put yesterday to Mr. Gaines. ** Would you have accepted of 
the deputation unless you knew that it would be agreeable to ge- 
neral Wilkinson?" Gaines said three times on oath, that he had no 
previous communication with general Wilkinson on the subject; 
that he was advised by Mr. Graham. Did not Mr. Graham 
say, that he had urged him to accept it; and that it was much 
against his inclination that he did accept it? This conjecture also 
falls to the ground. It is a poor prop; but like the rest of the props, 
weak and useless. 

But ^^ captain Gaines acted contrary to law.'' Suppose we ad- 
mit, (but which is not admitted), that captain Gaines did act 
contrary to law. What is that to general Wilkinson? Is he 
answers^le for it? It was thought in days of yore, a hard rule, 
when they visited the sins of the fathers upon the children^ to the 
third and fourth generation; but it would be still harder to make 
general Wilkinson responsible for the supposed misconduct of 
Gaines. I have shown that there was no sort of connexion be- 
tween them. Gaines has declared there was none. Gentlemen 
seem to wish to prove, that Gaines has done what is unlawful; 
and then to impute without proof, the whole to general Wilkin- 
son. I believe the spirit of the law justified what captain Gaines 
did. [Here he read Graydor^s Digest of the laws.] The words 
are such as might have fairly induced the judge and captain 
Gaines to have acted as they did. The words are extremely 
broad, and comprehensive enough to cover this very case. It is 
not certain, but it is at least extremely questionable^ whether 
the law did not authorise what they did. But whether it did or 
not, is not material. General Wilkinson and captain Gaines are 
two distinct men; and general Wilkinson is not bound to answer 
for the oflfences or errors of another man. 

Mr. Randolph then skips to judge Hall; and his judicial out- 
rage^ is repeatedly charged to general Wilkinson. Why, sir, 
there was a misunderstanding between them. The judge acted 
at the instance of Mr. Graham, and not at that of general Wil- 
kinson, who therefore cannot be answerable for it. After prov- 
ing this error or judicial outrage, as it is called, of the judge, 
they ought to show a connexion between them, to have existed 
before. But, sir, Mr. Randolph discovers a very important se- 
cret. He says, that the act of congress compels the removal of 
the party accused and the removal of tha witnesses together; 



296 

that in giving power to the judge to remove the witnesses, it re« 
quires him at the same time, to remove the party accused that 
both must be removed together. But if the party accused had 
been removed before, ought not the witnesses to be removed 
afterwards? Because it does not come within the letter of the 
law, would he not have a right to send on the witnesses? I 
doubt whether that would be a correct interpretation of the act 
of congress. It cannot be reasonably supposed, that as the remo- 
val of the witnesses was as much intended as that of the party 
accused; that if • the accused were removed first, the witnesses 
should not be removed afterwards. I should suppose, that the 
judge might remove both, at diiferent times; that if he sent on 
the accused before, (from necessity or convenience) he might 
send on the witnesses afterwards. But whether the judge com- 
mitted an outrage or not, is unimportant to general Wilkinson. 
He was not bound to attend on every step which judge Hall had 
taken; and if the judge may send on the witnesses without the 
party accused, it is to.be intended, that he has fully executed 
the law, until the contrary appear in a cause of his own, in 
which he is a party, called on to account for his conduct, and in 
which he shall have an opportunity to vindicate himself. But 
whether his construction of the law be correct or not, is im» 
material. Wilkinson is not amenable to this or any court, for any 
act of judge Hall, or any other officer. 

But Mr. Randolph has discovered a great secret, which no 
body else has discovered; which the most astute men in the 
commonwealth could not find out: ^ That it was a military or- 
der which was given by Gaines to Serjeant Dunbaugh, to re- 
move Knox from gaol to the vessel; and this is thought a proof 
that the whole was contrived by general Wilkinson; and that 
the order emanated from him. This is in the very teeth of the 
evidence. Mr. Gaines being called on to say, whether he had 
not given it as a military order to Dunbaugh, answered expli^ 
citly in the negative; that he had not given it in that capacity. I 
saw the gendemen looking attentively at the order; and I under- 
stood their motive to be, to discover whether Gaines had signed 
it as captain; but when this order is seen, there is no signature 
of " captairC* to it. He merely annexed his own name " Gaines;^* 
which proves that he was not acting in a military character. It 
is Very probable that if he had been acting in that character, he 
would have signed his military title. It is customary, I believe, 
to sign military orders, with the title or rank of the officers who 
give them; and an officer of his rank would have signed the or- 
der as " captainJ*^ If there were any doubt before, that doubt 
could no longer exist, after captain Gaines has declared before 
the court, not only that he did not give a military order, but that 
he never did aet under general WUkinson, in that whole trans- 



2&7 

action. He waa called on repeatedly to say, whether he had not 
given the order to Dunbaugh as his seijeant, and in his military 
character; and he as often denied that he had commanded him as 
Serjeant, (though he understood him to be a Serjeant) .but because 
he had obtained his promise before to execute the order; and if 
he had' not, he would have got some other person to do it. Sir, if 
Gaines had been acting as a captain, and signing as a militaxy 
commander, would he have proceeded to ask a favour as he did? 
Would a gentleman who understood his duty, have gone to him 
and asked him, *' JVill you be pleased to do sof^^ No, sir, he would 
have enjoined it as his duty: and his not doing so, proves that he 
acted in a civil capacity; and this disproves diis conjecture also. 

But general Wilkinson is a great criminal, because he con« 
suited the attorney general of the district The outcry which had 
been raised against this valuable citizen and soldier, gave him 
sufficient warning, in order to avoid reproach, never to do an 
act of this nature, but by the advice of persons learned in the 
law. Of course, when general Wilkinson, instead of giving ad- 
Tice himself, mentioned to those who were engaged to act for 
the public, that they should advise with the attorney general 
and another lawyer how to act; it showed a disposition to have 
nothing done but what the law warranted. Why are their acts 
charged against him? Is not this enough to show, that the charge 
of violence and oppression is wholly unfounded? If such con- 
duct as this be censured, I should suppose that it would be 
better to be silent, than to give judicious and friendly advice. 
As Wilkinson was not himself a lawyer, he told those gentle- 
men, *^ Consult the attorney general, and other gentlemen learned 
in the law, who will advise you how to act." Is it indeed cri- 
minal to aid the government in a case where the goveminent 
and all America are interested ; and, instead of giving a&vice 
to the persons called upon to act for the public, to refer them to 
the best source of legal information, the attorney general, and 
another lawyer? I never expected to hear such an objection 
Urged against general Wilkinson. This part of his conduct is 
strong and conclusive to show, that he* was determined that the 
laws of his coimtry should be the rule of his conduct. But it is 
not to be wondered at, that sinking without evidence or law to 
support them, they should catch at this straw; for there is nothing 
but assertion and suspicion: all conjecture, and no proof. • 

But my friend Mr. Randolph, forgetting that he was address* 
ing this honourable court, and feeling as he does sometimes, 
when he addresses gendemen ill informed about the laws of 
their country, endeavours to excite sympathy, and tells you without 
proving it, that general Wilkinson direw him (Knox) into a ship; 
that he was torn from his family and friends, and trauj^ported 
hither. But he forgets the facts. What family had he in New- 

VoL. I. 2 P 



2d8 

Orleans, and how long iiad he been tliere ? He stated, that he 
went with colonel Tyler down the river. [Here Mr. Mac Rae 
repeated the substance of Mr. Knox's own testimony, relauveto 
his going down the river to New-Orleans and staying there.] 
You will observe, sir, that I am od|y stating what he himself said 
yesterday. He was dragged away xrom his country, and trans- 
ported. What country ? He only staid tw6 short moniiis at New* 
Orleans. But, alas! alas! He has suffered all these dreadful O 
lamities. This is the melancholy statement made to help'lhem 
out; but all without proof. We fear not its etffecta* But, sir, ge* 
neral Wilkinson is a curious sort of a man. He sonoLetimes uses 
all the blandishments of a courtier; sometimes he is the most 
cruel savage that ever existed. Sometimes be talks of free-ma- 
sonry'; and all by fits and starts. By fits he is very kind; and by 
fits very cruel. But what evidence is there to prove all this i 
Has Knox said that general Wilkinson treated him cruelly} 
Does Mr. Graham say so? No, sir. Was he maltreated on shore 
or pn board ? The ship's provisions were very good; and he was 
treated on board like other people. Has captain Gaines sakl 
that he treated him very cruelly ? Where did Mr. Rapdolph fiivd 
this evidence ? I hope he misunderstood the witnesses. Your 
honours, who have listened patiently to the testimony, know that 
these are only bold coitjectures. Well, then, after going through 
all these conjectures, and refuting them, we come to another; 
that Wilkinson put him on board, transported him, and brougitf 
him to Richmond; and this conjecture is equally destitute of 
proof. These acts ought to be proved, before gentieioen indulge 
in this freedom of speaking to the court, of violence, oppression, 
and tyranny. I do not wish to tire the court by a recapitulation 
of all the evidence; but I will briefly repeat the principal facta, 
to show, that general Wilkinson had no agency in them. How was 
Knox first taken in custody? Was it by general Wilkinson?. No: 
by the sheriff at New-Orleans. Before whom was he taken i 
Before judge Hallj a man, who, we are told, was at variance 
with him. By whom was he committed ? By a warrant from the 
same judge HaH, executed by captain Gaines, in his ciyil 
capacity. Was this done by die direction of general Wilkinson i 
There is no evidence whatever of tlfis fact. By whose orders was 
he carried on board the vessel ? By the same deputy-m^irshal's 
request to seijeant Dunbaug^. By whom was he brought toNor- 
•folk ? By captain Gaines, who has the honesty to confess ^t he 
did it. Is it sense, or law, to attach general Wilkinson for an act 
which another confesses he has done, without having consulted 
general Wilkinson on the subject? 

But it is a most important object to affect general Wilkinson; 
because he is summoned as a witness against the prisoner. It 
has been often said by the counsel of the accused, that he is a 



299 

most important witaess; and if die course pursued by those gen- 
demen can justiiy conjectures on ' our part^ we may perceive 
that thetf think him an all important witness^ for there is no step 
taken without some obloquy cast on d)is respectable man. It was 
rumoured ail over this town, that he would never dare to come 
to it; that he would tremble to appear before Aaron Burr. This 
A>ldier and patriot has shown, that he can confront Aaron Burr 
or any other man. The report before, and the proceedings had 
against him since, his arrival, have but one object; and that is, to 
excite suspicions against his character. From the delay in his 
coming, even honest men began to think, that perhaps there was 
m>me truth in what was said against him. But now, that he has 
come, and diat this cloud of prejudice has been dissipated, another 
must be conjured up. Not content with attacking him for his 
own acts, they attack him for the acts of others, in which he had' 
no agency or concern* Does not the court see the object of at- 
tacking general Wilkinson ? Has he done any thing to obstruct 
the administration of justice ? Does the court believe that the 
gentlemen themselves believe, that he has done any act to ob- 
struct the administration of justice ? His great crime, forsooth, 
is, that he did presume to advise with proper and well in- 
formed persons, in order to make the law his guide^ in endea- 
vouring to procure material evidence for his country, in a case 
deeply aifecting its interest; and for this high sin, he is charged 
with obstructing the administration of justice. Whether he have 
done so or not, the court will decide* I am confident they will 
decide fairly and correctly. 

The court is entitled to admiration for having so very pa- 
tiently heso^ all the arguments which have been delivered. It is 
right to hear every thing that can be said on both sides of every 
question brought before the court. I wish it to be known, let the 
event be what it may, that thene never was a case, in which there 
was less of persecution, than this case against Aaron Burr. He 
has had privileges that never were extended to any other man. 
I rejoice that he has had those privileges; and we wish it to be 
known, that it is our desire, that he may continue to have the 
benefit of all the privileges to which he can possibly be entitled; 
because it will completely repel the unjust imputation of perse- 
cution. 

Sir, shall I add any thing more? Is it necessary? But let me 
ask, why has the prisoner made this motion ? Has he taken out 
a subpcena, that general Wilkinson or any other person has pre- 
vented from being served? Has any witness summoned for him, 
been prevented from attending ? Justice has been strangely ob- 
structed in this case ; not by stopping witnesses, but by bringing 
hither a man who has been with Aaron Burr, and appeared to 
be a material witness. There are many motives for believing, 
that this man was an important witness. The court will recollect 



300 

what he has already said. He was with the accused, and was, from 
his situation, one of those to whom the accused might have 
communicated sotne of his projects* It has been said, that there 
was no evidence of Knox's materiality, though general Wilkinson 
made an affidavit to that effect. The information given by Knpx 
himself, and the circumstances of the case, justified that affidavit; 
and in my conscience I believe him to be material, and that 
when on his oath hereafter, on the trial, he will give material tes- 
timony, if he disclose all he knows. 

Mr. Randolph may move for attachments to confine all the 
people in gaol, in defence of Aaron Burr, while he walks the 
streets unmolested. I do not know how many motions are to be 
made, if this motion succeed; and they have already apprised 
us, that they had several others to make. The next motion, I sup- 
pose will be against Mr. Perkins, for taking up Aaron Burr. 
Even for such a motion, there would be more ground than for 
that now before the court. 

I hope, sir, that for the length of time that I have trespassed 
on the patience of the court, I may be excused; and that I may 
be also excused, if, by any inadvertent expression, I have wound- 
ed the feelings of any gentleman; which was far from being my 
intention. I merely obeyed the impulse of duty, and I cheeiiully 
submit the case to the court* 

Mr. Benjamin Botts then addressed the court as follows; 

The chargCy on which our motion is founded, is, that iUeg<d 
means, invading the privilege of witnesses, tending to the corrupt 
tion of evidence, and materially to affect the justice and digntttf 
of the court, in the present prosecution, have been practised by 
james Wilkinson, within the jurisdiction of this court, so as t9 
subject him to process of contempt. 

The first description of these illegal means, consisted in rifling 
the post-offices, and the seizure of private papers, upon searches, 
some of which are attempted to be used against colonel Burr; 
and others are believed to have deprived him of the means of 
preparing for hiA defence, through the mail. These acts of oppres- 
sion would, in England, have subjected any man to the heaviest 
pains and penalties of the law. In the time of lord Camden, that 
great suppotter of the rights of the subject against the assump- 
tions of power, upoa solemn argument, declared, that such sei- 
zures violated the first principles of social union, and that the law 
of England admitted no pretext of state-necessity, to justify acts 
so subversive of the dearest rights of the people. He enumerated 
the multiplied abuses to which it had led, and clearly proved, 
that the power was utterly incompatible with the exemption of 
the accused from giving evidence against himself, and with thote 
privileges which Magna Charta had secured. The constitution 
of the United States, provides against searches upon warrants; 



301 

but the pKsentcase reaches beyond the evilto which the conTention 
looked; for Mr. Wilkinson thought the form of ^ warrant unne- 
cessary. The act of congress infficts high pains and penalties for 
taking or breaking a letter, after it has been put into the post- 
office* The postmasters, and all other agents in the establishment, 
are subject to punishment for violating the mail; no exception 
is made in cases of insurrection,. rebellion, or invasion; though 
assuredly these events must have been within the view of the na- 
tional legislature^ ^ possible ones* Private property and com- 
merce, the innocent and the guilty, will be at the mercy of prin- 
cipal and deputy plunderers, as long as the practice obtains. I 
never can reflect on this subject, without feeling strong emotions. 
I cannot forbear again to remind you of the part acted by 
the prosecutor when I first introduced this subject to the courts 
the other day. He complained that I should insinuate the per- 
petration of high crimes like these, without proof. His honest 
bosom seemed to swell with indignation at the injustice I was 
doing. I felt the impropriety of making such heavy charges, 
without the exhibition of testimony, and called for proof. In- 
stantly the scene was changed. The man was lost in the lawyer. 
What a minute before was a crime, then became a subject of 
eulogy. The second class of illegal means practised by general 
Wilkm8on,we contend, consisted in attempts to extort said invei- 
gh p^rti?! testimony against colonel Burr. 

There are two characters of craft in this branch of his mis- 
deeds. The one acts upon fear in all cases; the other generally 
on hope* We see this man in all his power and splendor, invit- 
ing an obscure stranger ^ his quarters; he proposes several 
questions. Knox shows reluctance in answering them; he then 
tenders Knox his service, his influence, patronage, and finally, 
one hundred or one hundred and fifty dollars. Finding all these 
unavailing, he resorts to the influente of terrors. He is interro- 
gated by Hall, who threatens imprisonment and transportation, 
in case of disobediencie. A list of printed interrogatories is exhi- 
bited, and Knox is required to submit to examination on them* 

This evil and corrupting practice of afiidavita is but little un- 
derstood. My friend Mr. Wirt sUgmatized them justly, the other 
day, as tending to the worst of purposes, always containing the 
language and the colouring of a biassed draftsman, and never tell- 
ing the whole truth. When a witness is examined ex parte by 
counsel, every thing that makes for his employer is carefully culled 
out and committed to writing, without the dross of what maybe for 
his adversary's advantage. If a witness should know much for the 
accused, and nothing for the government, he would be passed by 
of course. These affidavits are sent to the attorney. He is armed 
now with a great bundle of them. So many daggers put to the 
bosoms of the witnesses, as they successively appear, could not 



dD3 

be more huraBpiciouB (d tradiw Skotdd « tritne^to crtfM-eitaRni- 
iied,to give a differentcomplexioncoafactcbiitaiiiedin his affidavit^ 
the terrifying writing needs only to be. held up at the bar, nAd the 
naked exhibition of such spectacle eloipiendy prbcfeniDs his dSeS** 
tiny, if he vary in the least fr(5m that fatal paper. He is toM, 

dfid your ears shall come off^ The important rfght of cross-exa- 
mination is useless in such a case. To ^ confronted by lihe ac- 
cused, b nothing, when the witness » confronted by his affi* 
davit. 

The odier means practised by genend Wiflcinson appertain^ 
to the privilege of the witness, and the liberty of the citizen* 
This work of unprovoked t3n^aniiy, began (» a Sunday. Under 
colour of law, Knox was imprisoned and transpcHted for the 
drimes of having eyes to see, and ears to hear. He was not per- 
mitted to obtain from his lodgings the clothing necessary to 
cleanliness and health. The sagacious and patriotic judge had 
as much reason to drag Wilkinson from- the pinnacle off his great- 
ness and pomposity, and to commit and transport him after he 
had hung back, until ^ his friends trembled for his feme," as Mr. 
Knox. 

The habeas corpus sict in England, was produced by the un- 
lawful transportation of offenders for triaL That measure has been 
marked by all the great nsieasures of the resisting colonies and of 
the old congress, as one of the most usual and most grievous con. 
comitants of arbitrary authority. The legislatureof Massachusetts, 
in 1769, were excited to, whs* were said in the mother country to 
be, seditious resolutions, against the use of such an expedient by 
parliamentary authority. The articles of confederation; the vari- 
ous addresses of congress to the people of England, Ireland, 
and to the Canadians; the petitions to the throne, and the re- 
monstrances to the parliament; the* declaration of independence, 
and the preamble to the constitution of Virginia; all enumerated 
among the acts of royal misrule, justifying revolt, the oppressive 
one of transporting ojjcnders ror trial* The nation waded 
through bk>od and slaughter, to rescue us from this power ; but 
now it is exercised as an act of course, not indeed in all cases, 
upon a criminal by legislative authority, but upon a witness at 
the pleasure of a military chief, whose delinquency in attendance 
was real, while Knox^s was imaginary. 

But why all this complaint about poor Knox i He is nothing 
but a poverty-stricken,obscure individual. The vague and whimsi- 
cal phantasy of equality, that kindled enthusiasm in former times, 
is now too ridiculous for our cares. The abuses of Knox are of 
no moment. The sun rises and sets as usual. General Wilkin- 
son takes his coitee in the morning, and reposes himself on hi^ 
sofa in the evening. Wc are happy and content at our homes, 



SOS 

and dungt in f;eaenJ gooo as belbre. It is a mortifying tho^ght^ 
that the enemies of our happy form of government, may aow 
triumph in the acqiueacent surrender of the rights, which it was 
instituted to secure. They may boast that liberty has been 
Booui;ged with relendess fury and perseverance; that the revc^u- 
ticn has been shorn of the brightest of its beams, with the hear* 
liest i^iplauses of those, in whose presence the oflPences of a ty» 
lant have been presented for punisAm^ayu I feel more pain and 
solicitude on this subject, as a friend to the present administni/- 
tion, than I do as counsel for colonel Burr. I could humble my" 
self to beg of the gentlemen in the prosecution, to save the g^ory 
of our executive from the tarnish of pr^e and impunity to ge^ 
neral Wilkinson. If they will not grant my prayer, I must ad» 
dress it to you, sir. I hope and believe, that the chief magistrate 
of our country is a stranger to what has passed and is passing 
here. His generous manly soul would surely disdain all the petty* 
larceny means which have been used to kidnap testimony, betray 
confidence, and induce perjuries; it would equally revolt at the 
wanton violation of the most sacred of our laws and chartered 
rights. Such a system cannot characterize the noblest administra- 
tion that ever existed. 

Let but this daring act pass unpunished, and we cease to be 
what we were. If a citizen could be imprisoned for three days, 
he may for three years. If he could be transported to Rich- 
mond, he may to India. If one man can be so imprisoned and 
transported, so may a thousand. 

A witiiess was asked, whether Knox had not his liberty on 
the voyage i Yes, was the answer. How precious the boon! He 
was perfectly at liberty to jump into the sea whenever he 
pleased ! 

The attempt to make Mr. Gaines the scape-goat of this confe- 
deracy (ne deserves a better fate) is only equalled by the atrocity 
of the confederacy itself. 

We find that Mr. Wilkinson was inquisitor and transporter 
general, without scruple or disguise, until he was about to come 
to the United States. To borrow an idea from Mr. Mac Rae, the 
noise that had been made about his misdeeds, had taught him 
cunning. In the courts of New-Orleaos, he could make the tri* 
bunal bow and tremble, by a parade of magnificent nonsense. To 
avoid his own humiliation in a freer climate, this farce, in which 
a mock«judge and a military-civiUsea>marshal, without oath, 
bond or compensation, were to perform their parts, was devised. 
It is too clear that Wilkinson was the wire-worker behind the 
curtain, by which the wicked catering and gambols of mimic 
magistracy were played* I pity the condition of a subordinate 
military officer bound to passive obedience. Mr. Gaines was a 
worthy, duped young man* I Mras ftnd of the ho^et^t aK^eanmce 



304 

he made. The candour of his testimony made it more a subject 
of grief and indignation, that the contrivance should be to put 
the whole responsibility on him. The introduction of the lawyer, 
to complicate the disguise, is another feature in die picture. I 
hope, for the honour of the profession, that there is some mistake 
as to the part he acted. Wilkinson is to be discerned through 
every part of the cobweb. He makes the affidavit; he sets the 
lawyer to work ; his military officer becomes a deputy of the 
marshal to leave his situation without the leave of the commander 
in chief; a serjeant is the deputy of that deputy; the captain 
on board is under the direction of the general ; to his care cap- 
tain Gaines commits Knox through the serjeant; the military 
purse yields the money given to the witness; the vessel taken up 
by Wilkinson conveys him, and Mr. Gaines owns, that if the 
general on the passage had directed Knox to be put in irons, the 
order would have been instantly obeyed. What, a deputy mar- 
shal, as such^ to obey the orders of a military commander ! The 
insidious attempt at Hampton Roads, first involuntarily made by 
Mr. Gaines, and afterwards repeated by general Wilkinson, to se- 
duce an acknowledgn>ent, that the civil authority had transport- 
ed the wimess, may be connected with the other proofs. But the 
demand, by general Wilkinson of Knox's parol of honour to comie 
to Richmond as the condition of his enlargement, would be de- 
cisive on the present question, if it admitted of doubt* 

But you are gravely asked by Mr. Mac Rae to pronounce, 
that general Wilkinson deserves well of his country for all these 
his patriotic ^cts. What, in other times, and in other places, 
would subject a man to be suspended between the heavens and 
the earth, from whence his spirit should flee for ever, now calls 
forth the highest panegyric. I heard a compliment like the pre- 
sent from the counsel, when general Wilkinson was here on yes- 
terday. I looked upon him and witnessed a smile, when the oc- 
casion was better adapted to a groan. It was a smile of the 
ghastly kind. It seemed to be of that convulsive sort which distorts 
the face of the dying. Perhaps general Wilkinson took a retro- 
spect and felt the compliment to be a reproach. Thus prejudice 
leads gentlemen to praise acts of atrocity. This subject has been 
treated with singular levity, by the gentlemen in the prosecu- 
tion. They have not ventured to justify the commitment of 
Knox. The farthest that Mr. Mac Rae ventured, was to risk the 
supposition, that the act of congress was of doubtful application, 
and might possibly apply. He in this tacitly yields, that there is no 
justifying the conduct pursued in the commitment. The gende- 
man who spoke last, reminds us, that ^^ the sins of the fathers 
ought not to be visited on the children." I say then, that the 
sins of the principals ought not to be visited on the subalterns.' 

Mr. Mac Rae concludes with reminding the court, that colo- 



305 

ncl Burr had enjoyed privileges that no one under prosecution 
before him had ever enjoyed. He said too, that you were per- 
fectly right to hear us on this question. I submit to him whe- 
ther the first remark were just or respectful to the court? In 
the latter point he differs from another gentleman on the same 
side, who has struggled much to prevent us from address- 
ing you. 

It only now remains for me to prove that your jurisdiction 
is commensurate with our purpose. The 14th sect, of the ju- 
dicial act authorises the court: Jto issue all writs not specially 
authorised, for the more perfect exercise of the powers vested 
in it. The power of compelling attendance and securing privi- 
lege, cannot be exercised in perfection without a ^ower of at- 
taching for contempts in the one case or the other. The dis-^ 
trict courts of Virginia constantly exercise this right of over- 
looking the purity of the streams of their justice, through all its 
branchings, without the district as well as within. The right of 
attachment overreaching the limits of the state, must result as 
incidental to the emanation of the subpoena to other states. 
But the rioting of lawless power continued from New-Orleans 
to Richmond. When it entered on the seas it was within the 
regular limits of youf authority. 

In a view to the privilege of the witness this motion must 
be sustained, if we be deceived in all our other grounds. 
What means the privilege, unless it be, that he shall have pro- 
tection from abuse ? Is it to assist in this privilege to imprison ' 
him? Is the privilege to exclude him from all his rights, and 
put him at the mercy of land and sea gaolers ? ^ thfs be the en- 
viable advantage of privilege, general Wilkinson will deserve 
well of his country for assisting to maintain it. 

Knox was summoned before any of this violence was used 
towards him. From the moment that he was summoned, he was 
under your protection. The naked service of a summons must 
have proved, that your powers reached not beyond a summons 
until there were default. It was absprd to suppose, that what 
this court could not do for itself, a magistrate, no way con- 
nected with it, could unasked and officiously do for it. 

I refer the court, without comments, to Supplement to Viner^s 
Abridgment^ 225. and 3 Hccwkins^ 275, on the subject of con- 
tempts of the court. 

When Mr. Botts was speaking, [being about two o'clock] 
the grand jury entered, and Mr. Randolph, the foreman adress- 
ed the court; and stated, that they had agreed upon several in- 
dictments ; which he handed in at the clerk's table. The clerk 
read the endorsements upon them in the following terms: 

Vol. I. 2 Q 



306 

An indictment against Aaron Burr for treason-^^^ A true 
biU." 

An indictment against Aaron Burr for a misdemeanor — 
'* A true biU." 

An indictment against Herman Blannerhasset for treason— 
" A true bill-" 

An indictment against Herman Blannerhasset for a misde* 
meanor — " A true bill." 

Mr. Randolph then continued: May it please the court. 
Although the grand jury have returned these .bills; they have 
still other subjects for their consideration, and have adjourned 
themselves to meet to-morrow at ten o'clock. 

After Mr. Botts concluded his argument, Mr. Burr ad- 
dressed the court and observed, that as bills had been found 
against him, it was probable, the public prosecutor would move 
for his commitment; he would, however, suggest two ideas for 
the consideration of the court: the one was, that it was within 
their discretion to bail in certain cases, even when the punish- 
ment was death; and the other was, that it was expedient for the 
court to exercise their discretion in this instance, as he should 
prove, that the indictment against him had been obtained by 
perjury. 

Mr. Hat moved for the commitment of Aaron Burr. He 
stated, that if the court had the power to bail, by the 33d sect* 
of the judicial act, it was only to be exercised according to 
their sound discretion; and that the prisoner was not to demand 
bail as matter of right, because the court was authorised to 
grant it, but by his making out an adequate case, and showing 
that he was entitled to it. He quoted 4 Blackstone^s Commen-' 
tarits^ p. 298. to prove that this discretion ought to be delibe- 
rately and cautiously exercised. . 

Mt. Martin. — The counsel for the prosecution have then 
admitted the right of the court to give bad, according to its dis- 
cretion. 

Mr. Mac Rae did not understand from the judicial act, that 
the discretion was to be exercised at this stage of the business, 
but only at the time of making the arrest. 

Mr. Martin. — I can hardly suppose that this court has less 
power than the court of king's bench in England, which cer- 
tainly possesses this authority, according to 2 Hale ^ p. 129.. 134. 

Mr. Wirt was extremely solicitous to do any thing, com- 
patible with his duties, which might soften the situation of the 
prisoner, and if the court had the discretion, he did not wish 
them to restrict it; but he did not perceive the analogy which 
had been drawn between this court and the court of king's 



r 



307 

jeh. The powers of that court grew out of the common law 
, England^ whereas the powers of this court were defined bj 
A Statute of our country. What says the 33d section of the ju- 
dicial act? ^ Upon all arrests in criminal cases, bail shall be adr 
mitted; except where the punishment may be death, in which 
case it shall not be admitted but by the supreme or a circuit 
court, or by a justice of the supreme court, or a judge of a dis- 
trict court, who shall exercise their discretion therem, regard- 
ing the nature and circumstances of the offence, and of the evi- 
dence and the usages of law.*' Is not this inquiry by the court 
stopped, said Mr. Wirt; is not the evidence and testimony 
stopped, when it is now locked up by the finding of the grand 
jury? Would it be right for this court to go into all the merits 
of the case, which this clause evidently requires, before the 
court can exercise this discretion? Will the court go into the 
investigation of the evidence, and thus throw itself into colli- 
^on with the grand jury? It is obvious from these considera- 
tions, as well as from the words of the law, that such a discre- 
tion does not exist at this stage of the business, but only at the 
time of arrest. 

Mr. WicKHAM. — The counsel for the United States express 
their readiness to accommodate colonel Burr, yet act other- 
wise. If the court of king's bench possess this authority, 
shall it be contended that this court is without it? Shall it be 
said, that the liberties of the people of this country are not as 
well secured as those of Great Britain? that a British subject 
has greater privileges than an American citizen? It is said, 
however, that this court grows not out of the common law, but 
out of our statutes; but will it be said, that, when this court has 
once been constituted, it does not proceed according to the es- 
tablished jurisprudence ; that is, the common law ? There can be 
no question but that a state district court can bail, even in capi- 
tal cases. Will this court, it is asked, place itself in opposition 
to the grand jury? No, sir, it will not; and Mr. Wirt certainly 
forgets that the court is to hear both sides of the evidence; 
whereas, the grand jury heard one side only, and indeed a part 
only of that side ; for had the United States' attorney sent up all 
the witnesses, whose names appear at the foot of the indictment, 
very different would have been the result of their inquiries. 
The ground which we take is this: that the grand jury have 
found their bill upon the testimony of a perjured witness; and 
if the court were to bail colonel Burr, would ^t not be justly in- 
ferred, that they had not set themselves up in opposition to the 
grand jury, but that they had been furnished with lights, which 
had been denied to that jury ? ^^Upon arrests," signifies in all 
cases, where there has been an arrest. The case in Dallas 
comes fully up to the point. 



308 

Mr. BoTTfl satd) that ii the common law did Hot enable 
the court to bail, it did not enable them toxommit. 

Chief Justice.— Mr, Martin, have you any precedent, 
vhere a court has bailed for treason, after the finding of a 
grand jury, on either of those grounds ; that the testimony laid 
before the grand jury had been impeached for perjury, or that 
other testimony had been laid before the court, wlych had not 
b^en in the possession of the grand jury? 

Mr. Martin said, that he had not anticipated this case, and 
had not, therefore, prepared his authorities ; but he had no 
doubt, that such existed. ^ 

Mr. Burr.— Two distinct questions have been blended in 
this discussion, which ought to have been kept separate: First, 
Whether this court have the right to bail according to its dis- 
cretion ; and secondly. Whether it were expedient to exercise 
its right in the present instance? If the court have no discre«» 
tion, it is unnecessary to produce evidence. That question 
ought, therefore, to be previously settled. 

Mr." Hay observed, that when he first addressed the court, 
he was. of opinion, that the circuit court had this power, hav- 
ing been misled by a very transient conversation with the chief 
justice, on the first examination of Mr. Burr; that he had how- 
ever, considered this subject more maturely, and the more he 
thought of it, the more he was convinced, that Aaron Burr was 
not privileged to demand bail. That he would feel no regret if 
the court could bail, but he thought they could not; that it was 
incumbent on the prisoner to show the law which authorised 
his being bailed ; tnat the question was to be decided by the 
common law, by the acts of congress, or by the acts of Virginia* 
It could not derive the authority from the commonlaw, because 
this court is of a recent origin, deriving its power not only 
from a late law, but a lately created government; and it has no 
authority but from an established law. Does then, (said Mr. 
Hay,) the law which established this courts expressly convey 
this power? [Here he read the 33d section of the judicial act.J 
Now, how are the court to attend to the nature and circum- 
stai[ices o^the case and of the evidence? Will they require all 
the evidence to be before them, which has just occupied the 
attention of the grand jury for seven or eight days? Mr. Wirt's 
argument on this point is conclusive. The law too is ap* 
plicable to a prisoner only at the time of his arrest^ and not of 
an indictment being found against him; in the last case, the 
situation of the accused becomes still mor^ precarious; the 
danger which he apprehends, comes nearer and nearer, and the 
temptation to violate his recognisance, becomes much greater 
than at the earlier steps of the prosecution. [Mr. Hay then rc» 



309 

ferred to the case of Bedinger v. the Commonwealth of Vir* 

f;inia, decided by the court of appeals, where that court re^^ 
used to review the errors of a district court, in criminal cases, 
because no act of assembly gave them the power.] 

No man will contend, that the common law is in force in 
the courts of the United States. As soon might you assert the 
validity of the laws of the Cape of Good Hope or of Turkey. 
It was therefore ridiculous to compare the organization of the 
court of king's bench with that of the present court. As to the 
complaint of Mr. Wickham, that by this doctrine an American 
citizen would stand on worse ground than a British subject^ 
it is unavailing. Perhaps courts of justice would even be 
more disposed to bail for treason under such a government as 
that of Great Britain, than under our own, where the power of 
the government falls so rarely and so lightly upon the people. 
Were even the common law in force in the United States, it 
would have no relatioirto the organization of our courts. 

The power of bailing is neither derived from the common 
law, nor the act of congress ; nor is it deducible from the laws 
of Virginia. In cases Meeting life, the prisoner is not entitled 
to bail by our laws. Sev. Code^ 63. 83. 411. In the two former 
pages, two judges of the general court have the power; but 
it cannot be inferred that this court therefore has it. 

Mr. Wirt. — I have stated, that the powers of the court of 
king's bench are not applicable to this case, because, that court 
is the creature of the common law, whose powers are of an- 
cient date, and have been growing up from time to time; 
whereas this court is recent, and its powers fixed and defined 
by law. There is another great difference. The powers of the 
court of^ king's bench take their origin in a fiction. It is sup- 
posed to be held coram ipso rege! In its origin, the king him- 
self sat there, and he is still supposed to sit. Treason was a 
crime against his dignity; he might bail for it; and the same 
power belongs to the judges who represent his person. But 
how IS it with us ? Treason is an offence against the people of 
this country. And have the people ever sat here for the ad- 
ministration of justice? Are the judges of this court invest- 
ed with the powers of the people? But on the supposition 
that this fiction does exist, is not the power of bailing removed 
by a positive law ? Does not the act of congress expressly take 
it from the court? By the laws of Virginia, in cases of offences 
punishable in life and limb, bail is only admitted where there is 
but a light suspicion of guilt. If some of the witnesses be per- 
jured, that does not prove that the indictment is found on their 
evidence. There has never been an instance of bailing after a 
true bill found. The act of congress enables the court to bail 
only on arrests, after examination of the circumstances, the 



.310 

evidence nod liiw of the case. Can you bail therefore on a par- 
tial view of the evidence? 

Mr. WiCKHAM. — Two indictments have been found for 
treason; one against colonel Burr, and the other against Blan- 
nerhasset. If the latter were now to come into court, he would 
be bailed, according to Mr. Wirt's distinction, because not 
previously arrested; whereas colonel Burr would be devested 
of the very same privilege, though he was indicted for the very 
same crime* 

Mr* Hat said, that the judges of the general court in Vir- 
ginia have a copy of the record, with evidence included, before 
them, to enable them to judge whether they ought to bail in cer- 
tain cases; but that this court, if they had the power, could not 
let to bail without examining all the witnesses* 

Mr* Randolph expatiated on this subject at considerable 
length, and with great ingenuit)'* He particularly contended, that 
the power of admitting to bail was incident to every court; that 
the power was implied in the term ^^ court?^ That it was as abso- 
lutely necessary for the happiness of the people, that courts 
should possess this power, as it was, that they should have the 
right of committing persons accused, for their safe keeping, in 
order to be regularly tried* That the common law must be re- 
ceived to a certain extent; that every judge and court had the 
right to bail persons indicted before them; and that it would be 
an extreme hardship to confine in a dungeon, a person who could 
clearly prove that he was not guilty of the offence charged against 
him. That the counsel for the prosecution occasioned this lengthy 
discussion, by moving to commit colonel Burr; and that time was 
of no consequence compared to liberty. 

Mr. Martin protested against the ingenious fiction of Mr* 
Wirt, as he called it* He challenged him to name any king, from 
the days of king Arthur to the present time, who either did, or 
would, sit in the court of king's b^nch* That the act of congress 
only defined the powers of individual magistrates out of court, 
but took away no power from them as a court. That bailing was 
incident to commitment, and coextensive with the jurisdiction 
of the court over crimes* 

After a considerable desultory discussion on this point, the 
Chief Justice declared, that the act of congress, in express 
terms, enabled the court to bail a prisoner arrested for treason* 
That there was no distinction between treason and other criminal 
cases, as to the power to bail upon hrrests; but, that an arrest 
might be after a finding by a grand jury; in which case, the 
finding of the grand jury would be the evidence on which the 
court would have to judge whether the party arrested ought to 



311 

be bailed. That they were to exercise their discretion ^ accord- 
ing tb the nature anddrcumatancea of ihe offence^ and of the ef>t* 
dence and usages of law*'* That ^ usages of law'' were to be found 
in the common law, and the practice of courts; but that he 
doubted extremely, whether the court had the rig^t to bail any 
person, after an indictment for treason had been found against 
him by a grand jury; especially in a case like the present, where 
the government was ready with its testimony, and there was no 
extraordinary circumstance, (as an alibi clearly proved) to repel 
the effect of the finding of the jury, and that he wished autho* 
laities produced to satisfy the court that it had the power. 

Mr. Burr said, that if the court thought it had the power 
to bail in any case after a bill found, it would be then necessary to 
show that it ought to exercise its discretion in this instance. 
That tKe finding of the jury was founded on the testimony of a 
perjured "witntss. That general Tupper would prove, that there 
had been no such resistance to his authority as bad been stated 
by that witness; and that though this circumstance had been 
mentioned to the prosecutor by general Tupper, he had not 
been sent up to the grand jury. 

Mr. Mac Rae. — General Tupper has made no such com* 
munication to me. 

Mr. Hay. — Though I had a conversation with general Tup- 

Eer, I do not exactly recollect what it was. The truth is, that I 
ave carefully avoided conversing with the witnesses of the Uni- 
ted States, (except general Wilkinson). General Tupper made 
application to me for permission to go away; but I said, that I 
would, for no consideration, submit to the imputation of consent- 
ing to the departure of any of the witnesses. He was not sent 
up to the grand jury, because he was not considered as a mate-- 
rial witness. 

Mr. Wirt. — He has made no such communication to me; 
and I take it upon me to assert, that the resistance to general 
Tupper was not the treason, on which the indictment has been 
found* 

Mr. WicKHAM. — Suppose a man were indicted for murder, 
committed at sope distance from this city, and a grand juty had 
found a true bill against him; but it could be proved, by every man 
in the city,that he was at the moment when the offence was said to 
have been committed, walking in the streets: would such a find- 
ing by the grand jury preclude a court from bailing him? The 
constructive murder in that case is of the same stamp as the 
constructive treason of colonel Burr in this case, who is indicted 
for an act said to be done in,Blannerhasset's island, where he was 
said to be present, although he was at a considerable distance 
from the place. 



312 

Mr. Wirt.— -'Why should evideiice be produced to prove the 
perjury of a witness? why look to the indictment itself for a 
proof of its own fallacy, when the requisitions of Ac court have 
not yet been satisfied? The court wanted authorities to prove, 
that in such a case as this, it had a discretionary right to bail 
*^ according to the usages of lawJ^^ 

Mr. Burr wished to know, whether the court would go into 
testimony extrinsic to the indictment. 

Th(e Chief Justice had never known a case similar to the 
present, where such an examination had taken pllace* 

Mr. Martin would produce authoritieS| if he had time al- 
lowed to him. 

Mr. Randolph drew an analogy between this and die case of 
a coroner's inquest. 

Mr. Wirt siud there was no apposite analogy between them. 

The Chief Justice insisted upon the necessity of producing 
adjudged cases, to prove that the court could bail a party, against 
whom an indictment had been found. 

Mr. Burr did not wish to protract the session of the court to 
suit his own personal convenience. There was no time at pre- 
sent to look out for authorities. 

The Chi^f Justice observed, that he was then under the 
necessity of committing colonel Burr. 

' Mr. Burr stated, that he was willing to be committed, but 
hoped that the court had not forestalled its opinion. 

Chief Justice.— -I have only stated my present impressions. 
This subject is open for argument hereafter. Mr. Burr stands 
committed to the custody of the marshal. 

He was accordingly conducted to the gaol of this city, and the 
court adjourned till to-morrow. 

Thursday, June 25di, 1807. 

After a writ .of habeas corpus was granted to bring up the 
body of colonel Burr, General Andrew Jackson from Ten- 
nessee, and sundry other witnesses were sworn, and sent to the 
grand jury. 

Mr. Hay addressed the court. — ^We were reluctant the other 
day to discuss this subject. (It is not a question ; for it does not 
deserve to be so called.) We wished the court to decide on the 
testimony; but counsel would have an argument We have re- 
peatedly proposed to them to close die arguments. I thought, 
and stiU think, this motion an obstruction to public justice. I wish 
to go on with the business of the court, and this motion pre- 



313 

vents me« Gendemen have determined to persevere; but,, they 
have not stated the object; they have not specified the act of 
which they complain. If they had stated in their motion the £eict 
said to be an obstruction of justice, the absurdity would have 
been apparent. By avoiding a specification they get over the 
difficulty, and are enabled to go at laree on every topic for the 
public ear. But a fair examination of facts will satisfy the court 
that there is no foundation in law, nor justice, nor even in policy 
for this motion. 

Before I examine the merits of this motion, I cannot forbear 
to express my surprise, that it should be made by the counsel for 
the prisoner. It is called a contempt of the court. In what man- 
ner can any of the acts charged, be tortured into a contempt of 
the court. Is this motion made by order of the court itself f 
The court would never have thought of it. Is it made by the 
United States, or their officers? No. Nor is it made by a party 
injured. Burr cannot jusdy say that he was injured by bring- 
ing a witness to this place, who was one of his own associates, 
and who quitted his wife, children, home and business, to join 
him. 

What then can be their motive in making this motion? The 
solution is obvious. It is not with a view to clear away obstruc- 
tions of justice; but to make an impression on the public mind, 
that general Wilkinson, whose evidence is important, was guilty 
of violence and injustice. The motion itself is a contempt of the 
'court, by obstructing public justice. 

Chief Justice. — Mr. Hay, the court will hear any motion 
which you may have to make, or which any other gentleman 
may wish to make. 

Mr. Hay. — I cheerfully withdraw the remark, and to save 
time, I will discuss this motion first. I will state as briefly as 
I can, the evidence of the only witness introduced in support of 
this motion to attach general Wilkinson, James Knox. 

He says, that general Wilkinson sent for him, conversed with 
him about Bu^r, and his plans, as he wished him to be a witness 
at the expected trial. Knox complained to him of the want of mo- 
ney to carry him home. General Wilkinson ofiered him money. 
He knew, that if Knox were summoned as a witness on the part of 
the United States, he would be entitled to money for his attend- 
ance. It is only a conjecture of Knox, that general Wilkinson's 
motive for ofFering him money was to induce him to be a witness. 
I think this conjecture infinitely more probable: that, knowing his 
evidence to be material, and that he would be entitled to his ex- 
penses for his attendance, which might be prevented by his want 
of money, Wilkinson thought he might, very properly and inno- 
cently, obviate that difficulty .by advancing monev from the trea- 

VoL. I. 2 K 



suiy of the United States, to the amount that he Would probabiy be 
entitled to. Knox said, that he was aiterwards arrested, and car- 
ried as he understood, before judge Hall; committed to prison^ 
and carried on board the schooner Revenge^ by what he conceived 
to be military authority; that he answered some questions, which, 
according to his own statement, were artfully put; but that he de- 
clined going through his evidence before general Willqnson: not- 
withstanding, he i8declared,in presenceof thiaman,tobe amilitaiy 
despot, keeping the whole western world in awe and terror* The 
witness himself expressly declares, that Wilkinson never used 
threats nor promises to him; and yet gentlemen have.frequently 
mistated the notes, taken by general Wilkinson, to be an affidavit 
extorted from him* Now, sir, admit for a moment, that this nnm 
was brought here under a mistake of the law; adhiit more than he 
states, that he was brought by military authority, and the orders 
of general Wilkinson, and forcibly brought into this court Su^v 
pose merely, that the general thought, that as the military com- 
mander he had a right to bring reluctant witnesses to this country;. 
and had brought Knox to this court, because he knew him to be 
a material witness* I ask the court, whether this evidence, on 
principles of common sense, could justify the motion now before 
the court? This would be an illegal act, and for which Knox 
might recover damages; but certainly it could not be called a con- 
tempt of the court, without a perversion of terms, and confli^ 
sion of ideas* It would promote^ rather than obstruct^ justice* 
There is one species of treatment which might be offered to a 
witness, that might be called such a contempt* Suppose a wit- 
ness were coming to this capital with a subpoena in his pocket,, 
which had been served on him to attend and give testimony 
in this cause, and he were forcibly prevented from coming to 
court, that would be a contempt oif the court* In that case, the 
streams of justice would be interrupted, and the court ought to 
punish the party guilty of such unjustifiable conduct; and if the 
court would punish an offender for stopping a witness from 
coming to court, it would not act absurdly, blow hot and 
cold at the same time; and punish a person for bringing a man 
to court to tell all he knew in this cause* If to prevent a wit- 
ness from attending the court, be a violation of private right,, 
and a contempt of the court, for which the offender ought to be 
punished; on principles of common sense, an act diametrically 
opposite, cannot be the same offence* Admitting the conception 
of the witness to be correct, that he was brought hither b]^ mi- 
litary authority proceeding from general Wilkinson, this is coiv- 
clusive to show, that it is not a contempt of the court. There- 
fore, according to the testimony of the only witness brought 
forward in support of this motion, and allowing it the utmost 
latitude of construction, general Wilkinson is not guilty of a 



315 

contempt 6f the court, for which he ought to be attached, or 
for which even a rule to show cause against it, should be 
granted. 

But, sir, what is the real history of the conduct of general Wil- 
kinson? Why, sir, the mountain of which gentlemen have talked 
so much dwindles to a mouse : nay, more, it disappears; not eyen 
a shadow is left behind. The cause, about which so much has been 
said,and by means of which so much obloquy has been attempted 
to be thrown on general Wilkinson, is this : Mr. Gaines was re- 
quested, by the attorney general of the United States, to serve 
subpoenas on such witnesses as should be indicated to him. 
General Wilkinson has the honour and glory of being the man, 
by whom a dreadful explosion was prevented. He knew facts 
and the particular state of things better than any other man. 
The subpoenas were, therefore, very properly transmitted to him,, 
to be filled up with the names of the witnesses. Mr. Gaines did 
serve the subpoena on Knox, who said he was unwilling to at- 
tend ; and he served it on him, because he was previously point- 
ed out to him by general Wilkinson, to whom Knox had made 
some disclosure. Though he had not made a full disclosure, yet 
he had told enough to show that he was a material witness. I 
have, in my possession, the notes of his evidence, taken by ge- 
neral Wilkinson which, though neither sworn to nor signed, 
would have been sufficient to show his materiality; as he had 
come down the river with the party, and had some opportunity 
of knowing their views and objects. With a knowledge of this 
man^s materiality, general Wilkinson made an affidavit, that he 
was a material witness for the United States, and it was sent, we 
do not know by whom, (perhaps by a servant); it is certain he 
did not carry it himself. I will make a single reflection in this 
place. If general Wilkinson had been imder the influence of 
those diabolical designs which are ascribed to him, how came 
it to pass, that he intrusted this business to a roan with whom 
he was at variance ? This evinces a great deal of fairness and 
candour on his part. The judge issues his precept to take this 
man up, requires a recognisance of him; he gives no security; 
the judge deliberates on the subject; examines the laws of his 
country, (with the examination of which he was intrusted) ; 
gives his opinion, and expresses his extreme reluctance to act 
against him. He refers to the clause of the act of congress in 
question; to the counsel who was present; and after all^ he said, 
that he thought it his duty to secure the attendance of this man 
as a witness. He committed him, not to military authority, but 
to the marshal. He issued his warrant to the marshal of that 
district, and the marshal authorised Mr. Gaines to act as his 
deputy; and here is the warrant, (showing it) which authorised 
Mr. Gaines to act as deputy marshal. 



316 

Mr. BOTTS denied that there was any order conferring such 
an authority. [Mr* Gaines was then sent fon] 

Mr. Mac Rae offered to prove the respectability of judge 
Hall, as he had been attacked ; and said he could amply establish 
that he was a man of character and talents, and incapable of 
beitig used as a tool. 

The Chief Justice said, that nothing would be more im- 
proper than to go into such proof; that his character was not 
arraigned; and that, therefore, a vindication of it was un- 
necessary. 

After a few desultory remarks, Mr. Botts said, that he had 
not attacked him except as to this business ; but his opinion was, 
that if a lawyer in Virginia had given such an opinion, and act- 
ed as judge Hall did in this transaction, his licence ought to be 
revoked; but that he had understood from the best authority, 
that he was a man of unimpeachable character. 

Mr. Hay. — Gentlemen may do as they please with judge 
Hall. It is not my business to vindicate him ; they may lay him 
down in dust and ashes. It cannot affect general Wilkinson, nor 
the question before the court, unless they prove a connexion 
between them. I said, that the judge had committed Knox 
to the custody of the deputy marshal; that he directed the war- 
rant to the marshal, requiring him to bring him to this place. 
The marshal executes a deputation to Gaines, who arrests him, 
puts him in custody, then puts him on board the vessel, and 
brings him as a witness to Richmond. General Wilkinson, 
so far from manifesting contempt of the civil authority, was 
fearful that Gaines might do wrong, and recommended to him 
to apply to the attorney of the United States, and to other 
counsel to know how to proceed. I deem this a very important 
point: because general Wilkinson had not the slightest expec- 
tation, that he would be the subject of public animadversion, 
or that Burr would be the public accuser for what he was then 
doing. Therefore, his recommendation to Gaines to apply to 
counsel, demonstrates the habitual reverence of his mind for 
the constituted authorities of his country. It is impossible 
that he could have done so, for the purpose of shielding 
himself from this attachment; for without inspiration from 
above, he never could have guessed that such a motion as this 
would be made. This conduct, in my mind, demonstrates, in 
the clearest manner, that those imputations, that he is a m/- 
litary^ lordly^ despotic^ character, and holds in contempt the ci- 
vil authority, are absolutely groundless. How far general 
Wilkinson was justifiable in time of great danger, when he 
was threatened by traitors without and within, in acting as 
he did at New-Orleans, or what he ought to have done on 



317 

that trying occasion, is a question not now to be determined* 
I am inclined to believe, (though I do not certainly know) that 
the decision will not only be favourable to him, but that ulti- 
mately, the part he took will be honourable, in the highest de- 
gree, to his character. 

The declaration made by general Wilkinson to Knox, who 
was complaining to him of the want of money, that he might 
have so much, if duly considered, was proper and correct. 
Now, sir, take up the subject as it really appears ; even on the 
witness's own statement, it appears to be almost nothing. His 
ordering the military agent to pay money to the witnesses, 
shows his reason for offering money to Knox. When, there- 
fore, we consider the case as fully stated by Gaines, it appears to 
be less than nothing; because general Wilkinson did what was 
perfectly consistent with law, and dictated by every principle 
that ought to influence a man of integrity and patriotism. 

Gentlemen say, that it was his interest and his object, in all his 
plans, to destroy colonel Burr for his own salvation* If this 
were true, would he not have used the most decisive means to 
force the witnesses hither? What did he do in this critical situ- 
ation? He receives subpoenas from the attorney general, and 
tells the agent of the government, that he must apply to coun- 
sel, and act in the business according to law* I ask, whetiier 
ffeneral Wilkinson has done any thing for which he or his 
friends ought to blush, or the accused to complain? All he did 
was to make an affidavit, that the witness was material; and 
every thing which he dicj, stopped there. After the affidavit, 
every thing which was done was the act of the judge and of 
Mr* Gaines. Will gentlemen contend, that, if my representation 
be correct, Wilkinson is to be blamed for these acts? I know 
they have too much respect for the court and for themselves to 
say so: but they will say, that the military and civil authority- 
were united for this pui*pose. I ask, where is the evidence of a 
combination between general Wilkinson and the judge? What 
temptation was there to induce the judge to violate his oath, 
and prostrate his judicis^l character? Was it only for the purpose 
of gratifying general Wilkinson, with whom he had no inter- 
course, and with whom he was at variance? It is incumbent on 
them to prove a previous connexion between them before they 
can affect general Wilkinson. They have not deigned to do this. 
But we have a witness on our part, whose testimony proves^, that 
such a connexion was highly improbable. I wish Mr. Randolph 
had pointed out the grounds on which he so boldly denounced 
general Wilkinson for the acts of the judge* Knox, who made a 
voluntary representation to Burr, has no right to oomplain. 
He could maintain no action against general Wilkinson. Sup- 
pose he were to sue him for false imprisonment* Could he 
recover damages against him for making the affidavit, that he 



318 

was .a material witness? No, sir. The connexion between him 
and the judge^ and an improper and corrupt decision by the 
judge, must be proved. The witness could have no action 
against general Wilkinson, admitting the conduct of judge Hall 
to be illegal and oppressive. I think this ought to be conclu- 
sive. If there can be no right of action, there can be no con« 
tempt* But how strange does this proposition appear before 
the court? Knox was summoned to attend here as a witness. 
Suppose he had not attended, he would have been liable to an 
attachment for not coming; because the process of this court 
(in the name of the president of the United States) had been 
served on him, and it was his duty to obey it. He would, there* 
fore, have been liable to be attached for not coming, and yet ge- 
neral Wilkinson is to be liable to an attachment for making him 
come!! Is not this to blow hot and cold at the same time? This 
may be law; but no man in the world would say, that it bears 
the least resemblance to common sense. 

The geatlemen have never defined a contempt of the court. It 
IB stated in Sth Finery 442. 

The very definition of the offence excludes the possibility of its 
application to the act now complained of. 

How then can there be any thing by way of contempt, unless 
gendemen will seriously say, that general Wilkinson himself has 
brought the witness hither, and that bringing a witness to the court 
is a contempt of it ? 

The case in 3 Finer ^ 234, pL 56. referred to by Mn Martin, 
has no application to this case : it is not like it. The contempt 
there consisted in keeping a juryman from attending the court. 
I will trouble the court by referring to Ath Blackstone^s Com-' 
mentariesy p. 283. He states that the contempts punishable by at- 
tachment are ^^ either direct, which openly insult or resist the 
powers of the court, or the persons of the judges who preside 
there; or else are consequential, which (without such gross inso- 
lence or direct opposition) plainly tend to create an universal 
disregard of their authority." He further enumerates in the two 
next pages, the instances of the different kinds of contempts by 
officers, witnesses and parties, and other persons; all of which 
come within the same definition, of disregarding the authority of, 
or disobeying, treating with disrespect, or abusing, the process 
of the court. I believe it has been observed, that there never was 
an author on any subject, either law or any other science, more 
distinguished for precision than Blacistone. This is a character 
which he so well deserves, that I believe that an act that does not 
come within the scope of his definition, is not a contempt, and 
ought not to be so construed. Motions for contempts are questions 
between the court and individuals. In ninety-nine cases out of a 
hundred, they have no influence on the private rights of indivi- 



319 

duak* Yet the judges are but men, and they may sometimes 
think there was a contempt^ when none was intended; and, under ' 

the influence of feelings, of which they are not themselves con* 
scious, may decide accordingly, and punish a? party for an of* j 

fence never intended, and of course not committed* This is an ^ 

observation for which I am indebted to one of the ablest judges 
under the government of Virginia* Its propriety struck me with 
great force« Notwithstanding I presume that tlus is a fact, under 
such a high-toned government as that of England, the counsel 
who opened the motion acknowledged, that a case in point could 
not be found* Contempts in Great Britain have been frequent, 
and they have been uniformly punished; but in this country very 
few instances have occurred, and these were mosdy by drunken 
men. I ask then, whether it be not wonderful, if their motion be 
regular, that in all the volumes in the English laws, which treat 
on the subject of contempts, not a single instance can be adduced, 
by the industry of all the counsel on the other side, of an attach* 
ment for such conduct as is now complained of ? But it can be 
readily accounted for : it is because no such motion as this has 
ever been known in Great Britain. Though the doctrine of con- 
tempts has been too much extended in that country, yet no mo- 
tion was ever attempted to punish a man for promoting justice 
by bringing forward a witness to give evidence in a court of jus- 
tice. But I deny that this has been done by the party now accused* 
Is there a single circumstance in the conduct of general Wilkin- 
son, showing a disregard for the authority of this court ? An at- 
tachment is a summary proceeding, by which a man is taken up 
instantaneously, brought before the court, and unless, as in the 
present case, long speeches happen to intervene, he is immedi*- 
ately punished or discharged ; and the case is determined with 
as much rapidity, as the fate of those suspected persons, who 
were formerly sent to the revolutionary tribunal in France* Need 
I say to you, that however justified on the score of necessity, this 
mode of proceeding is not perfectly congenial with the spirit and 
principles of our constitution and laws. I do not mean to say, that 
this power is improper, and ought to be cut up by the roots by the 
legislature; but that it ought to be exercised with caution, and in 
cases of real necessity* l9t Bacon^ 181. &f 4 Bhckstonc^s Commen* 
tariea^ 286, show, that attachments are issued on the ground of 
necessity* If it be a doubtful case, since he is not tried in the 
usual manner, but interrogated to give evidence against himself, 
the court ought not to stretch the doctrine, but confine it within 
those limits which sound discretion requires* Even if an officer 
of the court acted improperly, yet Bacon has laid it down as the 
law^ that an attachment ought not to be issued against him, if 
there were no palpable corruption in his conduct. If this be the 
law, is'it not irresistible and conclusive to show, that admitting 



320 

that general Wilkinson did bring Knox to this place, yet if he were 
not actuated by palpable corruption, and if no extraordinary cir- 
cumstance of misconduct appeared on his part, the court will not 
proceed against him in thatway. If this caution be used in exercis- 
ing this extraordinary power in Great Britain, is not this caution 
ten times more applicable to, and more desirable in, a government 
like ours f I will mention a case which occurred in Fredericks- 
burg, which has been communicated to me by judge Roane. 
Some men were charged in that district court with murder; the 
grand jury found a true bill against them. The court told the 
gaoler to look to them ; accordingly the man took them oiit of 
court; but it was understood next day, that he had permit- 
ted them to escape. The court thought it a contempt of the ex- 
press order of the court, and the question was, in what manner 
a gaoler should be punished for suiFering men indicted for mur- 
der to go at large. The gaoler was willing to encounter the 
punishment of the law, and. the men came back. Judge Tucker 
thought it certainly a contempt of the court; but did not sit to 
give a judicial opinion. Judge Roane, recollecting the general 
power of courts, and the practice in such cases, and that he was 
jfiimself a party in the cause, was unwilling to use the power 
which this law of England conferred, and ordered a jury to be 
impaneled, to determine, whether a contempt were intended? The 
point was tried, and the gaoler was found not guilty. I do not 
mention this as authority; but to show, with how much caution this 
summary mode of proceeding is used in this country. In Great Bri- 
tain they have no fixed constitution, containing fixed principles, 
by which their parliament is to be regulated. But in this coun- 
try we have a constitution which regulates the duties of the dif- 
ferent departments of government, and defines the rights of the 
people. The seventh article of the amendments, adopted as parts 
of the constitution of the United States, provides, among other 
things, that ^^ no person shall be subject for the same offence, to 
be twice put in jeopardy of life or limb, nor shall be compelled in 
any criminal case, to be witness against himself!*^ This amend- 
ment is not directly applicable to this subject, but it shows 
its regard for the great and important rights of the people, 
and that they are not to be interfered with, but with the ut- 
most respect and caution. What cannot be done directly in 
a criminal prosecution, ought not be attempted indirectly by 
an attachment. I shall add, on this point, one more observa- 
tion. General Wilkinson is attending this important prose- 
cution, under the authority of this court. A subpcena, obliging 
him to attend here, has been served upon him. I do not say, 
that there is a provision in the constitution and laws of the Uni- 
ted States, by which witnesses attending their courts, are put on 
the same footing as witnesses attending courts under the state 



t 



321 

siuthority; but I have understood, that the practice in the federal 
courts is precisely the same. It is, perhaps, grounded on that 
clause of the judicial act, which makes the laws of the several 
states the rule of decision in the courts of the United States, in 
trials at common law, in cases where they apply. In pages 122. ^ 

and 278. of ^the Revised Code of Virginia, the privileges of wit- s 

Besses are stated. In the former page they are exempted from 
ordinary process. In the latter, they are privileged from all ar- 
rests, except for treason, felony, or breaches of the peace. 

I did not suppose, when I saw the extreme solicitude of gen- 
tlemen to bring forward this motion, their chagrin at delay, and 
their eagerness to rush into the combat, that they would have 
come forward on such feeble trembling ground, as they ha\T 
done. 

Mr. Randolph said, that suspicion was a sufficient ground 
for their motion. This is a plain admission, that he had no facts 
to support it; for if he had evidence, he would have relied on the 
facts he could prove, and never have called the attention of the 
court to suspicion. It is one of the last cases in which suspicion 
ought to be indulged. This is npt a rule to show cause, but a 
motion for an attachment. Probable ground might be sufficient 
to induce the court to grant a rule to show cause; but not to 
grant an attachment. To grant an attachment against a man, to 
have him taken up, brought before the court, and compelled to 
give evidence against himself, not on evidence, but on merely 
probable ground, or what is the same thing, suspicion^ is incom- 
patible with every principle of law and of human rights. The 
evidence which it is incumbent on them to produce, in sup- 
port of their motion, ought to produce not suspicion, but 
conviction. When Mr. Randolph says, that suspicion may 
be the ground for an attachment, he goes on a slender basis, 
which is occupied by the previous ru\e to show cause, l^his rule 
is always granted on showing probable cause. If an attachment 
were grantable on mere suspicion, what could support a rule to 
show cause ? It must be less than suspicion ! 

But I am wrong to blame Mr. Randolph, because it is the 
best and strongest ground he could take; for, with respect to the 
fact which he ought to prove at this stage of the business, it is 
so far from being established, that it is clearly disproved. I^ 
know, sir, why the motion was made. If I may use another very 
homely expression; he ** let the cat out xffthe bag»^ He became 
more animated, his voice more loud, and his arms more extended, 
and then he told us of the dreadful union between the civil and 
militaiy authority. This is bad enough. It is terrible enough 
to make strangers to our institutions think it an extraordinaiy 
mixture of powers. When we hear of this union of. the civil 
and military authority, and the complaint comes from Mr. Ran* 

Vol. I. 2 S 



322 

dolph, it must excite surprise. Those who never heard of it be* 
fore, as foreigners, must think that this business is strangely 
managed in this country. I am surprised to hear Mr. Randolph 
speak in such a manner. Why, sir, he knows that this identical 
union of the civil and military authority exists in our own go- 
vernment. The civil and military authority are joined by the 
constitution of the United States. The president is commander 
in chief of the army and navy of the United States: yet this 
constitution, which we all revere, and which we have all 
sworn to support, contains the very doctrine which Mr. Ran- 
dolph so eloquently denounced, feven in this humble govem- 
n^ent of Virginia, where liberty is secure, and where no maa 
apprehends oppression from the government, the head of the 
executive, is the head of the military. The covemor is the 
commander in chief of the militia when brought into service: 
yet Mr. Randolph puts on his best countenance, voice, and 
gesture, to warn the people of this country, of a dreadful attack 
on their liberties, by giving this commission to a lieutenant to 
s^rve a subpcena! 

He ought to have recollected another thing. He is not only 
a lawyer, but a politician. He knows that it is to this very iden- 
tical union of the civil and military authority, that we are in- 
debted for our liberties in their origin, and since in their preser- 
vation. If they were distinct, and exercised by diiferent hands^ 
we should soon see the military have the ascendency. 

But suppose that lieutenant Gaines's undertaking to serve the 
subpoena was wrong, is it a matter of consequence to general 
Wilkinson, who did not know that Gaines had put off his mili- 
tary dress, and assumed^ instead of it^ that of a civil officer? 
Gaines swears that he never had any previous communication 
with general Wilkinson on the subject; and never knew any 
thing of it, till the deputation was offered to him. General Wil- 
kinson never advised it; but if he had advised him to accept it> i 
it cannot be charged as a crime to general Wilkinson. He is 1 
able and willing to bear the imputation without shrinkbg. There a 
could be no impropriety in advising him to do what was perfectly \ 
consistent with the law. 

But Gaines did not give bond for the performance of the duties 
of his office. What is the result? That the marshal was autho- 
rised to take assistance, and Gaines might innocently have as- 
sisted him; and this was all done, not under the military, but 
under the civil authority. 

[Mr. Hay then referred the court to GraydorCs Digest of the 
iMwSy p. 264, to show, that his observations on this part of the 
subject were correct.] But, sir, the word " miUtary;^ is formi- 
dable in the ears of those who attend courts of justice. It ii^ 



328 

therefore used. It is true, that he acted in taking and keeping 
Knox, till he secured his attendance here. But had gentlemen 
attended to the evidence, they would have seen that this was 
done under the authority of the judge. But we hear distinctly 
those parts of the evidence which favour our own side of a cause, . 

and turn a deaf ear to those parts which are against us. It is only ^ 

on this principle, that I can account for Mr. Randolph's prefer- 
ence in asserting that Gaines acted as a military character; 
whereas it is evident that he acted in his civil capacity, in pursu- 
ance of his commission from the iparshal, and in obedience to 
the order of the judge. In this s^tement, he is corroborated by 
Graham, and not contradicted by any one. He not only says so, 
but ]^e produces the deputation from the marshal, and the war- 
rant of the judge, for the removal. But if Gaines did act as 
a military man, general Wilkinson is not responsible for it, any 
more than the major or colonel, who were also his military supe- 
riors; and if he were liable to the party in a civil actiqp, yet not 
for a contempt of the court. Yet, says Mr. Randolph, ^^he is 
incorporated with judge Hall, in all his acts;^' and one fact is 
particularly insisted on as incorporating them, that of his mak- 
mg the affidavit, that Knox was a material witness: and the re- 
sult is, that if judge Hall put a wrong construction on the 
law, general Wilkinson is responsible for it. Suppose Wilkinson 
had gone before Hall, and made an affidavit to the materiality of 
the witness, could Wilkinson be considered as responsible for 
any illegal conduct of the judge, after the affidavit was made? 
Making such an affidavit is a lawful act. On what principle can a 
man, who does a lawful act, be amenable for the subsequent unlaw- 
ful acts of another? Will they contend for so monstrous a proposi- 
tion? Suppose an individual goes before a magistrate, and makes 
an affidavit, that he has lost something, which he believes to be 
in the possession of another; and the magistrate, not knowing 
his duty, issues his warrant for the purpose of taking up the 
person suspected, to hang him; would the individual, thus sub- 
mitting his case to the magistrate, be responsible for the con- . 
duct of the magistrate? What does he do? He goes to the ma- 
gistrate and asks for the interposition of the law, according to 
the law. Is the applying, but innocent, individual to be accoun- 
table for the mistakes and errors of the magistrate? The posi- 
tion cannot be maintained. It was not advanced in so many 
term^, but it was strongly insinuated in their arguments, or 
plainly to be inferred from them. 

But another circumstance is relied on. "Wilkinson was the 
commander of the vessel. This is disproved. For it is clearly 
proved, that Franklin Read was the commander, who had a com- 
mission to that effect. Though the naval forces were for a time 
put under the command of general Wilkinson at New-Orleans* 



324 

he had no control over this vessel at this time. It was natural 

that general Wilkinson should have offered a passage to the 

witnesses, if they chose to come in the same ve83el that he came 

I / in himself. He manifested the same disposition when he came to 

^ Hampton. He got a vessel for their accommodation and its 

cheapness. It only proves his humanity and his disposition to 
oblige them, and make their passage as comfortable as possible. 

Yet, said Mr. Randolph, with an increased emotion, and eleva- 
tion of voice, that would have surprised me if I had not known his 
object, ^' why were subpcenas sent to him, if not to be used with 
military authority?" Suppose it was correct, that the attorney 
general had sent a number of subpsnas with a view to be used 
with military authority, and that the commander in chief receives 
them. What does he do? What would any man suppose he 
would do, or had done, if he were to form his opinion from 
what has been said of his character here? He would suppose 
that he had called about him^is janizaries and his mamelukes; 
that he had sent one detachment to one part, and another to ano- 
ther, through the whole country, to search for, and ^ seize all per- 
sons, who had the misfortune to be witnesses; that this military 
despot had sent out his myrmidons and military men, and without 
any regard to law or justice, had seized, confined, and transport- 
ed as many as his arbitrary caprice required. This, and worse 
he would have done, if his character were such as it has been 
depicted. But what did this mighty lord of the west do, with 
all these witnesses? He gave the subpoenas to Mr. Gaines to 
serve them, and told him, that if there should be any difficulty, 
to apply to a lawyer for advice how to act. And this is the 
mighty complaint against Wilkinson and Gaines! 

Do gentlemen think that they make a favourable impression 
on the public mind, when things in themselves so innocent, are 
represented as acts of the highest enormity? When things so 
white are thus discoloured? If they do, they are mistaken in all 
their calculations. 

But sir, general Wilkinson is guilty again, because he ven- 
tured to ask Knox, if he were not afraid after what had hap- 
pened. After what? " After I have arbitrarily seized and sent 
. people to a great distance." What right had Mr. Randolph to 
put these things in his mind, or these words into his mouth? 
I will venture to say, that they do not express his real intention. 
It is obvious that his meaning was, " Are you^ who are an as- 
sedate of Burr ^ and have been of his party ^ not afraid to appear 
before m^?" I will ask, whether it be right to ascribe to general 
Wilkinson sentiments which are not his own, and then to con- 
demn him for the sentiments thus improperly imputed to him? 
Yet, <his is the deplorable necessity to which gendemen are 
driven! 






325 

Mr. Randolph says, that Burr and Wilkinson are antipodes 
to one another. Indeed thejr art; but in what sense they are so 
is a consideration which I need not mention* 

But, says Mr.' Randolph, ^^ it is the intention of Wilkinson to 
min Burr* He must perish unless the other fall." We were 
charged with going too far, in drawing unauthorised conclu- 
sions and inferences; but Mr. Randolph has gone much further 
than any of us, and has substituted assertion for proof. He has 
stated, what is an unsupported assumption, that the Reputation 
of Wilkinson depends on the destruction of Burr. I will not 
retort the charge; but I will say, that it is more important to 
Burr to destroy Wilkinson's reputation. He knows how im*- 
portant it is to the accused to batter down the reputation of 
general Wilkinson. The accused knows it, and professes it by 
his conduct; because, from the comniencement of the prosecu- 
tton till this time, the object of every step taken, and motion 
made, was to beat down the character of general Wilkinson: 
but if they were to accomplish it, it would be the same to their 
client; it could not save bim. But they would say, that if it 
would not be victory, it would at least be revenge. The argu* 
ments of Mr. Randolph are so irrelevant, and the cases he ad- 
duced so inapplicable, though plain and not denied by us, that 
I shall not take up time to worry myself and the court, in prov- 
ing points which are too plain to admit of controversy; but I 
will trouble the court with a few more observations, without 
noticing his law authorities. I shall boldly contend, that there 
was not only not a single precedent among them, but that 
there was not even the least justification for the present mo- 
tion; that they have no real bearing on the subject. They were 
either genersd principles, which are not denied, but which do 
not apply to this subject, or relate to the conduct of the officers 
of the court, in serving criminal and other process. But he 
stated with great solemnity, that ** any force to swerve a wit- 
ness from the right statement of facts, was illegal and im- 
proper." In order to apply this, he is obliged to put down his 
own witness. The objection is, to the taking testimony from 
the witness. But the witness said, that there was no coercion 
used in taking his evidence; on the contrary, that he was treat- 
ed with courtesy. The objection operates equally against them; 
for they have taken his affidavit in this city. Admitting there 
was no degree of terror or force used. This has no sort of 
application. 

But Mr. Randolph says, that " no force is to be used in get- 
ting a witness to attend. This is not law. If the accused had 
been committed in the same district where the witness resided, 
and the judge had sent forward the accused, he would have 
been authorised to compel the witness t« come, and if he did 



326 

not enter into a recognisance, he would have put him in noL 
The spirit of the law is, that a witness who is material, and re- 
fuses to enter into a recognisance, may be removed by force. 
These are the provisions of the act of congress. Force may be 
and is used. The law directs that it shall he used* But the pio* 
sition, if it were correct, does not apply to general Wilkinson, 
because he did not bring the witness. 

f It was said by Mr. Randolph, that it was a ^' most dangerous 

power in any government, to extort testimony ex parte*'^ Is 
general Wilkinson responsible for all illegalities committed in 
the western country ? Mr. Jackson, they say, has been guilty 
of great impropriety in taking evidence. But notwithstanding 
this blame, which they so eagerly attempt to attach to gene* 
ral Wilkinson, he has not taken any evidence at all. AH he did, 

^ was, to make inquiry and take notes of Knox's evidence.. But 

they ask why were these notes taken? To satisfy his own mind, 
that he was a material witness. 

But there was one observation which Mr. Randolph used, 
with great warmth and solemnity, that ^^ a citizen of the 
United States was thrown into gaol by cqrporal force, and 
transported for the crime of being a witness." Is it not sur- 
prising, that they take such ground as this? Is it not strange 
to hear gentlemen of great experience, who hav^been intrusted 

* with the management of important business, gravely speaking 
' in this way? to hear Mr. Randolph say, that ^^ a citizen has 

* been thrown into gaol and transported ?" These are sounding 

and imposing words. Does not the court know, that these are 
things that may be done by law? The court well knows, that 
under the law of congress it is the business of a judge to re- 
cognise witnesses, and if they refuse to enter into a recogni- 
sance, or fail to attend, to commit them and transport them by 
land or water, as may be most convenient, to the place of trial. 
Is not this power expressly given by the words ^^ it shall be^ 
the duty of the judge of that district where the delinquent is 
imprisoned, seasonably to issue, and of the marshal of the 
same district to execute a warrant for the removal of the of- 
fender and the witnesses or either ofthem^ as the case may be to 
the district in which the trial is to be hadr" 

Mr. Randolph, without a single tittle of evidence, and with- 
out any principle of law to support him, prays in vain for a fa- 
vourable decision. All the authorities which he introduced are 
extremely vague; they do not show, in the smallest degree, that 
the facts alleged, if proved, would amount to a contempt of the 
court. Superadded to all this long catalogue of black crimes, 
you are told, with great solemnity, that a citizen of a free 
' country has been transported by military authority; not for a 
violation of the laws of his country, but because he was a wit- 






327 

aess. Sir, I will not animadvert on his mode of conducting a 
cause; I will only remark, that those observations, when made, 
wer^ introduced with the utmost solemnity, expressed with 
the strongest and most forcible voice, heard by every person 
within the walls of this house, and were certainly intended 
by the speaker to excite indignation against general Wilkin« 
son, and sympathy for the accused; and after all, it amounts 
only to this, that a witness may be c6mpelled to attend, if he 
do not do it voluntarily* 

The next observation was urged with precisely the same 
view. He seems to tremble when he fancies, that ne sees the 
prostration of all our rights and of our independence; when 
with uplifted hands and eyes, and elevated voice, he tells you 
of the military sporting with the rights of the citizens f If it 
were mere sport, he need not be so much ularmed. But what 
was this military sport, against which he so loudly declaimed? 
It was simply this, that a captain^ with the permission of his 
general^ and after a deputation by the marshal, served a sub- 
poena on a xvitnessy and brought him with him, being himself a 
witness and obliged to come ! I am not surprised, that gentle- 
men wander from the point, because otherwise there would be 
very litde ground for them to stand upon. 

He talks of the robbery and plunder of the post-offices. For 
what purpose ? Suppose the fact to be as it is assumed without 
the slightest proof. Let general Wilkinson, or any other person, 
who has committed the act, be prosecuted according to law. 
Let the parties injured apply to the law, and the parties who 
are guil^ be punished. But though the acu thus ascribed to 
general Wilkinson were clearly proved, they could net be con- 
sidered as a contempt of the court. Every thing is ascribed to 
general Wilkinson, in order to furnish a sort of pretext for 
denouncing him to the world. 

Being fatigued myself, and believing the court to be so also, • 
I shall not trouble it with any further observations. I trust 
that the court will render a correct judgment, according to the 
evidence and law. 

While Mr. Hay was speaking, the grand jury entered, and 
their foreman, Mr. Randolph, addressed the court to the fol- 
lowing eflPect: 

May it please the court: 
The grand jury have been informed, that there is in the pos- 
session of Aaron Burr a certain letter, with the post mark of 
May 13th, from James Wilkinson, in C3rphers, which they deem 
to be material to certain inquiries now pending before them. 
The grand jury are pcrfecdy aware, that they have no right to 
demand any evidence from the prisoner under prosecution^ 



328 

which may tend to cr}minate himself* But the grand juiy have 
thought proper to appear in court to ask its assistance, if it think 
proper to grant it, to obtain the letter with his consent. 

Mr. Burr rose, and asked whether the court were about to 
give an opinion f 

The Chief Justice stated, that the court was about to say, 
that the grand jury were perfectly right in the opinion, that no 
man can be forced to furnish evidence against himself: he pre- 
sumed that the grand jury wished also to know, whether the 
person under prosecution, could be examined on other questions, 
not criminating himself? 

Mr. Burr declared, that it would be impossible for him, un- 
der certain circumstances, to expose any letter which had been 
oommunicated to him confidentially; how far the extremity of 
circumstances might impel him to such a conduct, he was not 
prepared to decide ; but it was impossible for him even to deli- 
berate on the proposition to deliver up any thing which had been 
confided to his honour ; unless it were extorted from him by law* 

Mr. Randolph. — We will withdraw to our chamber, and 
when the court has decided upon the question, it will an- 
nounce it to the grand jury. 

The Chief Justice knew not that there was any objection 
to the grand jury calling before them and examining any man as 
a witness, who laid under an indictment- 
Mr. Martin said there could be no objection. 

Mr. Randolph said, he was afraid that the object of the 
grand jury had been misunderstood by the court. The grand 
jury had not appeared before the court to apply for the person of 
Aaron Burr, to obtain evidence from him, but for a certain pa- 
]>er, which might or might not be in his possession ; and upon that 
paper being or not being in his possession, and upon its being 
possible or not possible to identify that paper, it might de- 
pend, whether Aaron Burr himself were or were not a material 
evidence before them. And then the grand jury withdrew. 

When Mr. Hay had concluded his argument, Mr. Mac Rae 
addressed the dourt* He was solicitous, he said, to lay a com- 
munication before it, on a circumstance, which had lately 
transpired. The grand jury had asked for a certain letter in cy- 
phers, which was supposed to have been addressed by general 
Wilkinson to the accused. The court had understood the ground 
on which the accused had refused to put it in their possession; 
to be an apprehension lest his honour should be wounded, by 
his thus betraying matters of confidence. I have seen general 
Wilkinson, sir, since this declaration was made. I have informed 
him of the communication which has thus been made; and the 



339 

« 

general has expressed his wishes to me, and requested me to 
express those wishes, that the whole of the correspondence be- 
tween Aaron Burr and himself, may be exhibited before the 
court* The accused has now therefore a fair opportunity of pro^ 
during this letter: he is absolved from all possible imputatxm; 
his honour is perfectly safe. 

Mn Burr. — ^Thc court will probably expect from me some 
reply. The communication which I made to the court, has led, 
it seems, to the present invitation. I have only to say, sir, that 
this letter will not be produced. The letter is not at this time 
in my possession, and g^eneral Wilkinson knows it. 

Mr. Mac Rae hoped that notice of his communication would 
be sent to the grand jur}'. 

Mr. Martin hoped that colonel Burr's communication also 
would go along with it. 

The Chief Justice was unwilling to make the court the 
medium of such communications. 

Mr. Mac Rae hoped that the court would notify his com- 
munication to the grand jur}% and for an obvious reason. When 
the grand jury came into court to ask for the paper, what did 
the accused say? Did he declare that it was not in his possjcs- 
sion? No : he merely said that honour forbade him to disclose 
it. The inference undoubtedly was, t^at he had the paper, but 
could not persuade himself to disclose it. And what then must 
have been the impression of the grand jury? A cloud of suspi- 
cions must have fastened itself upon their minds; suspicions un- 
justly injurious to the character of general Wilkinson; and which 
the present communication may at once disperse. It is but jus- 
tice, therefore, to general Wilkinson, to whom the inquiries of 
the grand jury may at present relate, to give them the benefit of ^ 
this information. 

Mr. Burr. — General Wilkinson, sir, is extremely welcome 
to all the eclat which he may expect to derive from this chal- 
lenge; but as it is a challenge from him, it is a sufficient reason 
why I should not accept it. But as the remarks of the last gen- 
tleman seem to convey some reproach against me, (which « no 
man who knows me can believe me to deserve) it may be pro- 
per to say, that I did voluntarily, and in the presence of a wit- 
ness, put the letter out of my hands, with the express view, that 
it should not be used improperly against any one. I wished, sir, 
to disable any person, even myself, from laying it before the grand 
jury. General Wilkinson knows this fact. 

The Chief Justice then reduced these communications to 
writing, and transmitted them to the gnlnd jOrv. 
Vol. L 2 T ' 



S30 

Mr* BuRA* — Let it be understood, that I did not put this let- 
ter out of my possession, because I tocpectedUcks, grand jury would 
take up this subject; but from a supposition that jtney might do so. 

Mr. WicKHAM, about to speak, was interrupted by the en- 
trance of the grand jury;, when Mr* Randolph their foreman, 
informed the court, that they had agreed upon some present- 
ments ; which he then delivered into the hands of the clerk. 
The clerk read as follows: 

The grand inquest of the United States, for the district of 
Virginia, upon their oaths, present, that Jonathan Dayton, late a 
senator in uie congress of the United States, from the state of 
New-Jersey; John Smith, a senator in the congress of the Uni- 
ted States, from the state of Ohio; Comfort Tyler, late of the 
state of New- York; Israel Smith, late of the state of New- 
York; and Davis Floyd, late of the territory of Indiana, are 
guilty of treason against the United States, in levying war 
asainst the same; to wit, at Blannerbasset's island, in the county 
of Wood, and state of Virginia, on the 13th day of December^ 
1806, 

Upon the information of 

William Eaton^ Erick BoUman, 

Peter Taylor, Jacob AUbright, 

Charles Willie, John Graham, 

Samuel Swartwouu George Morgan, 

John Morgan, Thomas Morgan, 

Elias Glover, D* Woodbridge, junr. 

David .C* Wallace, Edmund B. Dana, 

John G* Henderson, Alejcander Henderson, 

James Wilkinson, Hugh Phelps, 

Jacob Dunbaugh, John Monholland, 

Chandler Lindsley, James Knox, 

William Love, ^ Thomas Hartly, 

Stephen Welch, James Kinney, 

Samuel Moxley, David Fisk, 
Benjamin H* Latrobe, 

JOHN RANDOLPH, foreman. 

The grand jury, continued Mr. Randolph, have no farther 
presentments to make* He then delivered two papers which 
they had received from the court* The one was a cyphered let- 
ter, addressed to H* Winbourn ; the other was the letter to 
colonel Morgan* 

Chief Justice* — Mr. attorney, have you any thing more for 
the grand jury? 

Mr. Hat* — I can have all the indictments ready to be laid 
before them to-morrow. 



331 

Mr. Taylor (from Norfolk). Is it not customaiy for the at- 
torney to file informations upon these presentments? Is theve any 
necessity for detaining the jury? 

Some objection was made* 

Mr. Randolph. May not the bills be laid before ano^er grand 
jury, as the parties presented^re not now in custody? 

Mr. Hax- — ^That course would be productive of great incon- 
venience. All the witnesses are nowhere; and they will not, per- 
haps, appear before another grand jury, and the present jury are 
already in possession of all the evidence. 

Mr. Randolph had hoped, that they would be discharged. He 
was not anxious on his own account, but there was one of the 
jury peculiarly and delicately situated; who wished to return to 
his family. 

Mr. Taylor observed to the court, that a very afflicting cir- 
cumstance, of a domestic natiu'e, made him peculiarly anxious 
to return home. 

Mr. Hat was extremely sorry that he could not gratify the 
wishes of the jury; but the interest of the United States ibrt)ade 
him. He would have the indictments ready at any hour in the 
morning, that the jury would name. Nine o'clock was mentioned, 
and the jury were then adjourned to that hour. 

Mr. WiCKHAM then addressed the court to the following 
effect: 

I should envy the gentleman, last up, the peculiar felicity of 
never being in the wrong; and that happy ductility of judgment, 
which enables him to apply other gendemen's arguments to suit 
his own purposes, and to view every thing on his own side as 
perfectly clear. The praise of general Wilkmaon is his great ob- 
ject. His pure virtue and disinterested patriotism constantly 
excite his utmost zeal, and form the theme of his finest eulo- 
gies. Of this object he has never lost sight; but his own argu- 
ment did not make much impression on his own mind : the 
farther he went on, the weaker it was. Whether this were pro* 
duced by some supervening doubts on the subject, or becausb 
what is deemed clear requires no argument, I will not under- 
take to determine. It would however save much time if the 
S gentleman would introduce a short formula^ referring to his 
brmer arguments in praise of general Wilkinson, instead of 
perpetually repeating them. On what ground has the gende- 
man on the other side gone to argue so elaborately and zea- 
lously, if he think the case so penectly plain ? If it were so 
perfectly clear as he affects to consider it, why did he address 
so long an argument to the court? Did he believe so much la- 
bour necessary to satisfy the minds of your honours that the 
case was so very plain? 



332 

Buti waiving all these considerations^ I mean to confine my- 
self to the point* It is to the court and the court alone, that It 
mean to address myself. The gendeman on the other side 
insists, that we have made no specific charge against general 
Wilkinson. We cannot help it if he do not understand us ; 
but we have stated a specific charge in terms as plain, as any 
in the English language. If he do not comprehend it, per- 
haps it is because our arguments have not as much weight with 
him as his own. It is extremely difficult to conquer prejudice. 
Our charge is, that there have been acts in the highest degree 
illegal, done by general Wilkinson, under colour of the pro- 
cess of this court; that a citizen has been dragged by military 
force one thousand two hundred miles, for the crime of being a 
witness,and having a subpoena served on him. We contend, that 
this is a direct invasion of the liberty of the citizen; an abuse of 
the process, and a contempt, of the court; and deserves a most 
severe pttnisliment,if we can bring it home to general Wilkinson, 
of which we have no doubt. We have supposed, that the judge's 
warrant was merely a void act; because it was illegal. We 
have supposed, thatt' calling on the judge, an officer without 
authori^, to make out a warrant, which was neither legal in 
form nor substance, but a mere attempt to give the semUanc^ 
of legality to wh^t they knew to be illegal, was an aggravation 
of the offence* 

Gentlemen say, that it was only a judicial act, in which a 
judge may be mistaken, without being liable for his mistake. 
WiU the gentlemen contend, that an illegal warrant, issued by 
' a magistrate having no authority to act, can have any effect? 
Whatever he does, without having jurisdiction, is void, and has 
not the least validity : if he err, his mistakes are not excused. 
But if he have iurisdittion, and a right to act on the subject, he 
is not responsiole for errors of judgment. There is nothing 
better settled, than that distinction between cases where a ma- 
gistrate has authority to act, and cases where he has not. In 
the former, his mistakes of judgipcnt are excused ; but in the 
latter, he is personally responsible for his acts, and his miscon- 
ception of the law does not in the least excuse him. 

Another observation is, that in the lowest as well as in the 
highest oifenCes, all are principals. Every person concerned 
in an illegal act is equally guilty, in the eye of the law, with 
the person most active. The question then arising on this 
particular case, is, whether this act of violence, this abuse of 
the process of this court, were procured or aided by general 
Wilkinson, or were assented to by him ; either before or after 
die imprisonment complained of? If he acquiesced in the 
mischief done, or assisted in it, he is as guilty as if he had 



333 

first contrived it. Every person who assents to, or aids in, the 
completion of an illegal act, is a trespasser ab initio^ 

Instead of wandering into the wide field of declamation, to 
^ palliate or justify those illegal acts, gendemen ought candidly 
to have said, ^^ We admit the guilt of those inferior agents, by 
whom the acts were committed, but we insist that generad 
Wilkinson is innocent*" No sir, not choosing to rely on his 
innocence, they undertake to show, that the act itself, if not 
innocent and justifiable, is at least excusable ; and they cen* 
sure us for making this motion, as if we had no interest in it. 
They tell us, that *^ the United States have not been injui'ed, 
and make no motion.'^ Sir, if the officer of the United States 
do not choose to resent diis indignity to die court, which 
goes CO sap the foundation of justice, is that a reason why the 
party injured should not lay it before the court? This is the 
cause of the Upited States ; it is the cause of every man who 
comes forward as plaindff or defendant. Every man feels an 
interest to keep the fountain of justice pure and uninterrupted. 
They ask, ^^ was the witness brought here to speak truth?" 
]l hope this man did say the truth. I am sure he did say the 
truth; because the witnesses they relied upon, to exculpate 
general Wilkinson, proved, that every thing he said was true. 
They confirmed not onlyall he -said, but supplied every omis«> 
sion in his chain of evidence. But sir, has fear no effect? Has it 
no operation on the human mind? If this man had nerves strong 
enough to bear such treatment, are we sure that the fortitude 
of others will not be shaken? If the court sanction the practice 
of bringing witnesses to the bar as criminals, will it not have 
thcL practical effect, in many instances, of prevendng impartial 
evidence? Can we expect from a man dragged as a felon, that 
manly disclosure of facts, which distingubhes a firm and in- 
dependent mind; and which neither the fear of offending, nor 
the hope of pleasing any party, however powerful, can prevent 
from exculpating or criminating according to truth and justice ? 
Was not hope as well as fear used? On one side you have a 
sum of money and other emoluments; on the other, ruin and 
disgrace. On the one hand you have every prospect of advan- 
tage; on the other of being dragged in chains! Can it be doubted, 
that if this practice be tolerated, a witness, allured by hope on 
one side, and alarmed by fear on the other, will deviate from 
the truth? If there h» a deviation, it is on the side of the pro- 
secution; for which way they wish it cannot be doubted. The 
man who avows maxims of this sort, for the attainme&t of any 
end, will not be scrupulous as to the means which he employs 
to secure it. But -another view in which this subject ought to 
be placed is this : Colonel Buir in justicemd law stands on an 



334 

equal footing with hid accusers. He ought, if possible, to be so 
in fact; but we know that it is impossible; that every disad- 
vantage operates against every man who is a prisoner; and that 
every advantage is in favour of the prosecution. On one side all 
the means of procuring evidence are restricted; on the other the 
means of commanding testimony for the prosecution are unre- 
strained and abundant. An officer appointed by the government, 
and liable to be turned out of office at its pleasure, summons the 
witnesses. If he be a firm and independent man, determined 
to do his duty correctly, at all hazards, so much the better ; 
but if not, we know how his bias will be. The public treasury 
may be emptied in collecting witnesses and employing affidavit- 
men : and, in addition to all these means, if there be unwilling 
witnesses, or any who suggest doubts, they are brought by 
force to give evidence. But, if we have unwilling witnesses, 
who can testify the truth in our favour, we have nothing but 
the naked process of subpoena to compel their attendance. 
There are great advantages on the part of the prosecution, 
which ought not to be carried any further. This is an un- 
fair advantage to the prosecution, which this court ought to 
take from them. But, ^^ we have made this motion, in order to 
make impressions on the public mind." I will not waste the 
time of the court in inquiring who have wasted most ftime. 
We have been obliged to follow the gentlemen in this course. 
It will bcrecoUected by the court, that they have repeatedly 
attempted, in this court, to advocate and foment those strong 
prejudices, which have been industriously, and but too sue- 
cessfuUy excited against colonel Burr in the country. They 
still continue their efforts to create and increase those pr^u- 
dices. I ask, whether it were to the public or to the court that 
those remarks were addressed? What has the court to do with 
motives? But if motives be discussed, did they not wish 
to influence the public mind, at the very moment when they 
accused us of it i Colonel Burr is not obliged to account for 
his motives. We are correcting that influence on the public 
mind, which has been improperly produced. But there is a 
motive, and a very powerful one, to justify this motion. We 
know not how long this prosecution may be continued* We 
know not how long this practice may be continued. We wish 
this court to put its veto upon it, and act..i/i terrorem^ to pre- 
vent such oppressive and unjustifiable pr^tices hereafter. For 
as long as the prosecution lasts, this ofience may be repeated, 
and theiefore ought to be repressed. 

But, ^^ suppose general Wilkinson to be the man who has 
dragged a citizen, by military force, from one end of the 
country to another, it is only a nlistake of the law*" Does 



335 ' 

the gentleman forget the legal maxim, that *' Ignorance of 
the law excuses no one?^^ But if this were not the law, and 
ignorance were an excuse, can it be believed, that this was 
a mistake proceeding from ignorance? General Wilkinson 
is in possession of the highest military office under the go- 
vernment. Can a man, in his elevated station, be so ignorant 
as to believe, that he can drag a man, as a felon, twelve hun- 
dred miles for the crime of being a witness ? If he be this ig- 
norant man, and if he commit acts in the highest degree t3rran- 
nical, through ignorance, what shall we say of the government 
which appointed him? Sir, the government knew that he was 
a man of talents, and had no right to believe, that he would do 
these things; or, if he should, that he would not be personally re- 
sponsible for them. No man will believe that the government 
thought, or that he himself thought, that he tould assault or 
imprison any man lawfully or with impunity. There is hardly 
a boy out of his hornbook, that does not know better than that 
such acts could be legal. I hope we shall hear no more of the 
ignorance of general Wilkinson. 

Butwe are told, that we are guiltyof a contradiction that cannot be 
reconciled. The gentleman says, |^ if Wilkinson had stopped Knox 
and prevented him from attending as a witness it would have been 
a contempt of the court;" and we are asked, ^^ if it be a contempt 
to stop him, how it can be a contempt to bring him, as the acts 
are opposite in their nature ?" This is a most singular argument. 
Things may be opposite, and yet be wrong. Extremes are fre- 
quendy wrong. It would be a strange thing if general Wilkinson 
could have carried this man from Richmond to Norfolk, by 
force, and be liable for his conduct; and yet if he carried him,in 
like manner, from Norfolk to this place, that he should not be 
equally liable. These acts are opposite